Untitled Texas Attorney General Opinion ( 1943 )

TEEA``~ORNEY GENERAL OFTEXAS . HMorable T; 'GilbertAdams C%init~A$tdrneg J&isp&'County Jasper, -.,~ Texas Dear Sir: OplniofiNon;o-52=- “‘~ Re: Authdrity.df a.Ju‘etibebf3hV Pe&c'Ei to colIect“a‘fee-.id~'~he issuance .., of a search *. .~ warrant. __._ ~. Your request for ‘dpinionhas beetirec&iVed~ati``bai+d -fillyconsideredby this department. We quote from ycur request as follows: _^ "I would,thank you Fo furnish Biewith'an opinion as to what method and manner a Justice of the Ptiace" should.'fbllowintiollectlngfees f‘dr IsSuing a Search Warrant t5 Peace"Offlcersin lii- vestiga,tionof Liquor violationsand other violaL tions which do not borneund.@rthe jurisdictionbf the Justice Court, and in cases-~thatdo not come under the-jurisdictionupon trlCil,"ofthe Justice of the Peace; when the Bearch warrant Is used by the officer and no violation sufflc'ientto pro- secute, is found on the premises searched.. "Undbr Article 1066, Code bf Criminal Pro- cedure, Texas Statutes, it reads as follows: "'Justicesof the'peac.eshall receive the following fees in criminal actions tried before them. to be collected of the defendant in case of his condytion: . For each warrant, Seventy-fivecents. . . . ..f . a .o 1 "I,'ponot find any provision in the Statute whereby a Justice of thb Fe&e is..pr&ected __ .- in hlKfee .whenhe issues a S‘earchWarrant for the Peace Officer an&the violation, if one is found to'exlst, comes under the jurisdictionof the District Coiirtor the County Court, OP where it is found that there is not bufflclent vlolatioii to justify prosecution. I am referring especially ., ., ,., Honorable T. Gilbert Adams, page 2 o-5286 : ,, to violations of the Liquor Law and warrants is- sued by the Justice of the Peace for State Liquor Inspectors in their efforts to curb the violation of the Liquor law8 in a dry area. ,"IWould assume that if there Wa8'.nOtsuffi- tilefit @vld‘EhCefbuduna to ijros&de.a violationupon which a Search wartiknth&s iSSUd, there'wouldbe no f&e payable to'the Justide of the"Peace,but in th& event ther'&.'is'~sufficibntevidence'.found by .' reason"of the warrant, there Is some way to protec,t the Jtisticefor his services in the issuing of the warrant." . -,' Article 1066, Revised Code of CVimlnal"-Proc,edure of Texas ,1925,referred,to~ifi your lette?,'wasrepelled in 1929"by H.B. 64 of the 41st Legislature Bf Texas, Firat Called Session. _. There is no Texas statute allowIng ju8tYkes'ofthe peace fees for issuing search warrants of any character. ." We quote from 34 Texas Jurisprudence,page 511, as fOllOW8: "As hereinbeforestated, the compensationof $ublic officers is fix& by the ConstitutionSir statutes. An bfficer may not claim or reach aiiy %onSy without a law‘.authorizing him to do so, and clearly,,fixing the gmount to which he Is entitled. . . . . - In"vi,ewof the above it is our opinion that"justices of-'thepeace are not i3ntftledto any fees for Issuing any character of search warrants. We enclose herewith for your informationa copy of opinion'No.O-4091 of this departmentwhich holds Article 1071, Vernon's Annotated Texas Code of Criminal Procedure (an article allowing justices of"the peticeexamining tr'ialfees in misde- meanor cases to be tcixedagainst the defendant on conviction) to be unconstitutional. Honorable T. Gilbert Adams, page 3 o-5286 Very truly yours ATTORNEY GENERAL OF TEXAS By s/Wm. J. F&nning Wm. J,“Fannlng Assistant WJF:mp:wc Encl. APPRm MAY 18, 1943 s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS Approved Opinion Committee By s/BIsBChai'rman