Untitled Texas Attorney General Opinion ( 1989 )


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  •              THE    ATTORNEY    GENERAL
    OF TEXAS
    December 19, 1989
    Honorable Jesusa Sanchez-Vera    Opinion No. JM-1120
    Jim Wells County Attorney
    P. 0. Drawer 2080                Re:   Whether a commissioners
    Alice, Texas   78333             court may authorize a justice
    of the peace to retain a por-
    tion of assessed    fines for
    the purpose of funding addi-
    tional positions   (RQ-1851)
    Dear Ms. Sanchez-Vera:
    You ask whether a justice of the peace may, with the
    authorization  and approval of the commissioners      court,
    assess a $50 fine in a Class C misdemeanor "bad check" case
    and retain a portion of the fine to pay the salary of an
    additional employee in his office.
    You advise that a justice of the peace "is swamped with
    hot checks under $20.00" and the commissioners court refuses
    to provide additional help for the office.      The justice
    requests the authorization and approval of the commissioners
    court to assess each hot check violator a fine of $50 and
    retain a portion of the fine to pay the salary of an addi-
    tional employee for his office.
    Section 112.052 of the Local Government Code provides
    that a fine imposed by a justice of the peace shall be
    charged against the justice. Subsection      (b) of sect:.;
    112.052 provides    that the    justice may discharge
    indebtedness by filing a county treasurer's receipt for the
    amount with the county clerk, showing to the satisfaction
    of the commissioners   court that the justice has used due
    diligence in an attempt to collect the fine, or showing that
    the fine has been satisfied by imprisonment or labor.1
    1. The United States Supreme     Court in Tate v. Short,
    
    401 U.S. 395
      (1971)  held   that a  defendant   may not .be
    imprisoned because   he is   too poor  to pay  his  fine.  &
    Attorney General Opinion JM-977 (1988).
    P. 5888
    Honorable Jesusa Sanchez-Vera - Page 2   (JM-1120)
    Commissioners courts may exercise only such powers  as
    are specifically  conferred upon them by the constitution
    or the statutes.  Canales v. Laughlin, 
    214 S.W.2d 451
    , 453
    (Tex. 1948); see Tex. Const. art. V, § 18.     Neither  the
    constitution nor the statutes empower the commissioners
    court with authority to allow a justice of the peace to
    retain a portion of fines assessed to hire an additional
    employee.
    To permit a justice of the peace to assess a minimum
    fine of $50 in every Class C misdemeanor hot check case to
    pay the salary of an employee would also violate the United
    States and Texas Constitutions.  Section 12.23 of the Penal
    Code provides that a person adjudged guilty of a Class C
    misdemeanor shall be punished by a fine not to exceed  $200.
    The system under consideration would make the penalty in a
    Class C misdemeanor   hot check case in Jim Wells County
    a fine of not less than $50 nor more than $200. In Attorney
    General Opinion JM-880 (1988) a statute allowing a commis-
    sioners court to set fees in misdemeanor    cases was found
    unconstitutional.  Attorney General Opinion JM-880 stated:
    In Texas, costs in misdemeanor      criminal
    cases are assessed as part of the punishment.
    Ex Dar-,          
    159 S.W.2d 126
    (Tex. Crim.
    App. 1942): Ex aarte Mann, 
    46 S.W. 828
       (Tex.
    Crim. App. 1898). See also Attorney     General
    ",ifh~;n JM-443 (1986). Cf. United States v.
    
    809 F.2d 1504
        (11th Cir.
    (hold&g imposition of costs as punishmeAz8:b
    be constitutional).   A law allowing different
    costs to be assessed    in different   counties
    for the same penal offense would have the
    effect of allowing the aenaltv      for state-
    defined crimes to varv from countv to county
    and would violate    both  'due nrocess'    and
    'equal urotection'    constitutional    rishts.
    U.S. Const., 5th Amend.,     14th Amend.:  Tex.
    Const., art.
    suora. See Meiet"::    iziteEX 6``'~eW.``'"~?~
    --
    (Tex. App.    Houston [14th bist.] 1982, pet.
    ref'd). See also Ex Parte Fercuson,         
    132 S.W.2d 408
    (Tex. Crim. APP. 1939); Ex uarte
    Sizemore,   
    8 S.W.2d 134
    (Tex. Crim. App.
    1928).   (Emphasis added.)
    
    Id. at 3.
    Assessment of a minimum $50 fine in every Class C
    misdemeanor hot check case in order to defray the cost of an
    additional employee would result in the penalty for a state
    defined crime to be different in Jim Wells County than it is
    in other counties and would violate both "due process"   and
    "equal protection" constitutional rights.
    P. 5889
    Honorable Jesusa Sanchez-Vera - Page 3 (JM-1120)
    SUMMARY
    A countv commissioners    court mav    not
    authorize a-justice of the peace to retain a
    portion of assessed fines for the purposes of
    funding an additional employee.
    JIM     MATTOX
    Attorney General of Texas
    MARY KELLER
    First Assistant Attorney General
    LOU MCCREARY
    Executive Assistant Attorney General
    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General
    RICK GILPIN
    Chairman, Opinion Committee
    Prepared by Tom G. Davis
    Assistant Attorney General
    P. 5890