Untitled Texas Attorney General Opinion ( 1939 )

Hon. B. J. Stewart
CountyAttorney
Real County
Camp Wood, Texas
Dear Sir:
OpinionNo. O-594
Re: When is a Justiceof the Peace entitledto his trial
fees in a case he has tried,end is~he entitledto.
any fees in cases filed by complaintbut dismissed
by motion of the oountyattorney?
Your re9ue.dfor an opinionon the above statedclue&ionhas.been received
by this office.
Article 1052, Code of CriminalProcedure,reads as follows:
"Th&c Dollarsshell be paid by the County to the County Judge, or .;i:
Judge of the Cousttat Law, andTwo Ibllersand fifty cents shall be
paid by the countyto the Justiceof the Peace, for each criminalaction
tried and finallydisposedof before him. Provided,however,that i~¶
all countieshaving a populationof 20,000 or less, the Justiceof
thePeaceshall receivea trial fee of Three Dollars. Such Judge or
Justiceshell presentto the Commissioners' Court of his countyat a
regularterm thereof,a writtenaccountspecifyingeach criminalaction
in which he claimssuch fee, certifiedby such Judge or Justicato be
correct,and filed with the County Clerk. The Conmissioners' Court
shall approvesuch accountfor such amount as they find to be correct,
and order a draft to be issuedupon the County Treasurerin favor of
such Judge or Justicefor the amount so approved. Providedthe Com-
issioners'Court shall not pay any accountor trial fees inany ease
tried and in which an acquittalis had unless the State of Texas was
representedin the trial of said cause by the CountyAttorney,or his
assistant,CrimdnalDistrictAttorney,or his assistant,Criminal
DistrictAttorneyor his assistant,and the certificateof said Attor-
ney is attachedto said account certifyingto the fact that said cause
was tried,and the State of Texas was represented, and that in his
judgmentthere was sufficientevidencein said cause to demanda trial
of same."
The plain and specificlanguageof the above quoted statutein that the
judge or justiceof the peace must both try and finallydisposeof the case
before him to be entitledto the fee providedtherein.
Hon. B . J. Stewart,April 10, 1939, page 2 (O-5&)
In the case of Brackenridgevs. State, 11SW 630, the court, in passing
upon a similarquestionused the followinglanguage:
?Phe case must have been tried and finallydisposedof before him,
he must both try and finallydisposeof it, such is the plain
languageof the statute,a triai is an examinationbefore a cornpatent
tribunal,accordingthe laws of the llnd, of the facts put in issue
in a case, for the Iurposeof determiningsuch issued.
"A dismissalof a case is to send it out of a courtwithout a trial
upon any issue involvedin it. It is the final dispositionof that
particularcase, but is not a trial of it."
In the case,'Richardson vs. State, 4 S.W. 2nd 79, holds in effect thst when
a case was disposedof on motion to Quash:the aounty judgewss entitledto
a fee under Article 1052, Code of CriminalPro>edure,payableby the county.
We do not think the case establishesa differentrule as laid down in the
case of Braakenridgevs. State, 11 S.W. 630, supra,for there is a distinction
in a motion to quash and a motion to dismiss.
You are respectfullyadvisedthat it is the opinionof this Departnentthat
in compliancewith Article 1052, Code of CriminalProcedure,the Commissioners'
Court must at a regularsessionpay to the justiceof the peace the fee as
providedby such statutefor each criminalaction tried and finallydisposed
of beforehim.
You are furtheradvisedthat the justiceof the peace is not entitledto
such fee where there is no,trialof the ease before him but is dismissed
.uponmotion of the comty attorney,
Trustingthat the foregoing answersyour inquiry,we remain
Very truly yours,
ATI!ORtEX
-L OF TEXAS
s/Ardell Williams
By
Ardell Williams
Assistant
AWrAW
APPROVED:
a/ Gerald C. Mann
ATTORNEYUiEE!ALOFT!XAS