Untitled Texas Attorney General Opinion ( 1946 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GROVERSLLLERS ATIO”NL* GIWUIAL ::onorableShelby K. Long sounty Attorney ,'efrersoncounty aeaumont, Texar 3ear sir: 0plnion NO. O-7079 Iie:Would the trial udge be entltled to thp/' Statutory See pro9ided Under sec. 1052, C.CaP., in the\oaaea in quea- ``~h~&~heijeooused was \ ?e cuote from "on the 24th Game warden, at Oyster Commlsslon, oinot No. 1, Jerrerson against one R. J,$epers for sale and ,M+lng,,ln These csseq wS~e for the defend- ‘\<*“It. ls’the oontentlon of the trial judge that "@ ,eaohOf these cast?s,he is entitled to the ata tu- torTfee provided under Seotion 1052 C.C.P., slnoe tHe aotion taken in eaoh inetanoe amounts to a final dieprrsltionof the matter, thereby bringing to sn end the trial 0r eaoh 0696. In support of this oon- tention the 0888 ot Richardson 9s. State, 4 3. ‘;!.(Zd) 79, is cited. Ye respectfully rscuest your opinion in this regard.- :‘J;orable rjhelby::.Lon# - Face 2 .3rtlole1052 of our Code of Crlxlnal Frooedure, CY a.landedin 1929, reads: "Three Dollars ehall be paid by the oounty to the County Judge, or Jude6 or the court at Uw, and Twc Dollars and fifty oents skall.be paid by the county to the Justice of the peace, for each criminal action triad and rlnally disposed or be- rore hia. provided, however, that in all oounties having a population of 20,000 or 1888, the Juatioe 0r the Feace shall reoeive a trial fee or Three collars. such Judge or Justice shall prsaent to the Conrnlssloners~Court of his county at a regu- lar terx thereof, a .*rittenaccount speclrying each crlxlcal action in whiob ha olaiius such fee, cartifled by such Judge or Juatlca to be oorreot, LX filed witi; the County Clerk. The Comlssioners* court shall approve such aooount for such amunt as they find to be correct, and order a draft to be ismed upon the county Treasurer in favor ot such Judge or Justice for the amount so approved. rrovided the Cozkxissioners~Court shall not pay any account or trial fees In any case tried and la &lob an aoquittal is had unlese the State oi Texas was represented in the trial of'ssid cause by the County Attorney or his assiatarit,Crlulnal District Attomey or his assistant, and tbe cer-, tirioate of said Attorney is attaohed to said ao- oount certirying to the Snot that said cause woe tried, snd the State ol Texas wad represented, and that in his judgznentthere was surricient evidence .in said oause to denand a trial or asze.n % think the decision of the court of orlslnal Appeals of Texas in the oase of g:ohardaon 9. State, cited by you, is decisfve of tke l.uestlon hare presented. In that case the oourt said: “. . . The oontentlon is made, as we under- atrnd it, that the Jud@e*s fee is directly de- Fondant upon an sotual trial and disposition Or CaSba in his court, snd tterer0re a motion to ,-uashan inrormtlon or indictment before hix, if sustainad, results nacasaarlly in his not. 385 TTocorableShelby p. Lone - rape 3 receiving compensation; whereas, if eame is overruled, and the oase actually tried and disposed Of, he will receive a Se6 of $3 under artiole 1052, O.C.P. 1925 . . . . ." ". . . . *There might be suoh iasuea tried and disposed of In a motion to quaah 88 would amount to a final dlrposltion and trial of a osse and discharge oi the aooused. ':ecan use no reason to doubt that in such a case the oounty judge would be entitled to hia 166, pay- able, however, by the oouoty . . . .W The oopy of motion to quash analosad with your letter shows that the two ground8 or the motion8 to cueah the complaints were: first, that the act under which the ;rosecutlons were brought waa unoonstltutional in that the caption thereoi was def8Ctlve; and second, that said aot was unoonstitutlonal in that it embraced more than one sub- jeot. The motions to quash were sustained, Those are, In our opinion, Wauch issues tried and disposed of in a motion to cuash as would amount to a flnal diepoeition and trial of a aaae and disoharge of the aocu6ed.f~ It Is therefore our opinion that the Justloe of the Fee06 is entitled to oolleot from the county his trial Se88 5.osaid oases, in aooordanoe with the provisiona of said Ar- Mole 1052, C.C.P. This opinion, however, is limited to the state of raots presented in the instant caseg,and on the assumption ttat the precinat 0rrfoers 0s Jefferson county are oompensated on a fee basis. Yours very truly ATTCRW C%FAiL OF T3XAS