Untitled Texas Attorney General Opinion ( 1944 )

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Sonotable J. P. Holubec .
County Auditor, Luvacs County
iiallettsville, Texas
Dear dir:
Your letter of
of this depnrtment on the
as Sollows :
t es they find
a draft to be la-
surer in favor 0r
the amount so
ommlssioners Court
ouht or trial fees in
whloh an ecquittal is
oi Texas ‘was repreeen-
rial of said aause by the County
his assistant, Criminal District
his assistant, and the oertlfl-
d Attorney 1s attached to aaid
tlfylng to the fast that said
oause was tried, snd the State of Texas was
represented and that in his judgment there
was nuffioient evidence in said oause to
dernahd a trial of &mm.’
'A8 gou will
note, ths etatute la allent about
a oonstable*e tee8
and I would like to know from your
depertaent whether id four opinion the oonstable be
entitled to hfe fees in aoqulttal and also whether
or not the Yustloe and the Constable would be entitled
to their fee8 in orlminal oase in Justloe Court where
the oase wa8 tried twioe and both trials resulted in
ur and final11 the ease dismissed
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Sar.wr~bla J . Y. riolubec, pigs 2
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County :+t.t3rney. * * *II
,rticle 1052, Vernon’6 Annotated Code of Cr:ainsl
Procedure, does not pertais to the fees or compensation of
sheriffs or cocstsbles. This statute pertaim only to the com-
>enss tion 0: Gurlges and Justices of the Peace.
iirticle 1065, Vernon’s nnnotated Code of Criminal
Frocedure, allows certain fees to the sheriff or other peace
officer Performing the same services in misdemeanor cs~ses, to be
tAxed 2gtiiu.A the defe:.dant on oonviotion.
.irticle 1087, Jernon’a -nnotated Code of Crlmlnsl
Prixedure , sroviiies, in effect, that constables, nmrshals or
other peace officers who execute process and perform services
for justices in &ulna1 actions, shsll receive the sane fees
allowed to sheriffs for ihe 8-e services.
it will be noted, after considering the foregoing
gtatutes, that a constable in misdemeanor csses 1s entitled to
the fees authorized by Article 1065, supra, on conviction of the
defendant and th& such ices are to be taxed against the defen-
dant. Therefore, you are respectfully advised thst a oonstsble
:~a not entitled to his fees in mlsdezesnor c%ses where the de-
fendant 1S acqulLted.
ke now consider your second question with reference
to the com;~ensotion of the jutitice of the peace and the constable
1% % mlsdeme%nor c%se in the justloe court where the o%se was tried
twice arid each trisl resulted in % mistrial and wee finally dis-
@ased uson motion of the county attorney. In view of what hss
heretofore been said with reference to the Sees of the oonstable,
It is olesr that the oonstable would not be entltled to any fee
where the case was dismissed, although suah c3.88 had been tried
twice and resulted ln % tietrial esoh time prior to the dismiss%1
or suoh ease.
In then csse of Brackenridge v. State, 11 9. b’. 630,
the oourt, in passing upon a slmilsr question, pertaining ,to the
compensation of a oounty judge, used the following language:
-The ease must have been tried and finally
disposed of before him, he tiust both try and
finally dispose of it, sueh Is the plain l%ngu%ge
of the atutute. The trial 1s %n exsmlmtlon be-
fore a oompetent trlbun%.l, aooordlng to the laws
of the land, of th% faotr put in losue in a oese,
ror the purpose of deter;ainlng owl-,!ssues.
s s
’ 442
Ronorable J. B. Kolubec, gage 3
“A dismissal of the c&e is to send it
out o-f the court without 6 trial upon any issue
involved la it. It Is the final disposition or
that partloul&r c%se, but is not a trial of It.”
In the case of Richardson v. State, 4 S. g. (2d) 79,
it w%s held in effect that when the ease was disposed of by motion
to quash, the County Judge was entitled to e tee under .irticle
1052, Vernon’s raotated Code of Criminal Procedure, paysble by
the oounty. be do not think this o%se estsblishea a different
rule as laid down la the o%se or Brackenridge v. State, supra,. \
for there is % distinction in a motion to queah snd % motion to
dismiss.
The plala and spectfio knguqe of krtfcle 1052,
aupre, is that the juage or justice of the peace must both try
and finally dispose of the oaae before him to be entitled to the
fee ?rovidad therein. This department hsa repeatedly held thst
the juatloe of the peaoe la not entitled fo the fees provided by
Article 1052, aupra, when the c%se is diamlssed uRon motion of
the state*8 attorney.
You are re6pectfully advised that it 1s the opinion
of .thla department th%t the juatloa of the peace la not entitled
to the fees provided by Artiole 1052, Coda of Criminal F’rooedura,
although there hea been two trials of such case reaultlng ln a
mlatrlal but was l%ter dismissed upon motion o? the county at-
torney. The case was tried twice by the justice of the peace
but auoh trials did not finally dispose of the a%88 before him
a06 was later disposed of upon motion of the county attorney to
dlamlas. Therefore, it la our opinion that tha justice of tha
paaca would not be entitled to the compensation allowed by Artl-
ole 1052, aupra, ln such case.
Yours vary truly
ATTORREYGRRERALOF TEXAS
BY
&f&-id .+.kiA-
Ardell Wllllama
Aaeistant