Hon. W.E. Yancy

Countybuditor Tarrant County Fort Worth, Texas
Dear Sir: OpinionNo. O-1759 Re: Under Article 1052, C.C.P., can the county auditor legallywithhold justice's fees on caseswhich are appealed to county court,paying such fees only upon dlsposltlon of the cases by the county court?
Your request for opLnionupon the above question has been received and consideredby this department. We quote from your letter as follows:

"Pleasegive us an opinfon from yourDepartment on the constructIon ofArtLcle 1052, Code of CriminalProcedurerelative to disposition of fees to Justice of the Peace in criminal cases. "Article1052 reads inpart as follows: '1 I..0.Two Dollars and fifty cents shall be paid by the county to the Justice of the Peace for each criminal action tried and finally disposed of before him'.... "Thepointwe are Interested in is: whether or not the countyauditor can legallywithhold justice fees on caseswhich are appealed to the County Court,paying such fees only upon disposition of the cases by the County Court. The authority of the county auditor of course, to withhold such fees pendingdispositionby the County Court depends upon the constructionand meaning of the term 'disposedof before him' and whether or not a case Is finallydisposed ofwhen the case Is appealed to the County Court,
"We have been taking the position that 'finally 

### disposed of before him' does not mean that the casesHon. W.E. Yancy, page 2 o-1759

are finally disposed of before the justice of the peacewhere an appeal has been made to the County Court.." OpinionNo. O-616 of thisDepartment,written by Hon. hrdell Williams,Assistant Attorney General, holds that Article 1052, Code of Criminal Procedure of Texas, provides that the Justice of the Peace shall receive~$2.50 inall counties having a population in excess of 20,000 Inhabitantsand $3.00 In all counties having a population of 20,000 inhabltantsor less for-eachcriminal action tried and finallydisposed of before him, such fees to be pald by the countywhen such claims are filed in compliancewith Article 1052, C.C.P.,and that It is immaterialwhether the defendantwho is convicted in such criminalaction pays his fine and costs orworks his ffne and costs out on the county farm, public roads or otherpublic works of the county, or satisfies such fine and costs by staying in jaila sufficient length of time to discharge his fine and costs. Article 833, Code of Criminal Procedure of Texas, reads as follows:

"Inappeals from the judgments of justice or corporation courts, the defendant shall, if he be In custody,be committed to jailunless he give bond with sufficient security, to be approved by the court fromwhose judgmentthe appeal is taken, in an amount not less than double the amount of fine and costs adjudged against him, payable to the State of Texas; provided said bond shall not in any case be for a less sum than fifty dollars. Said bona shall recite that in said cause the defendantwas convicted and has appealed, and be conditioned that the defendant shallmake his personal appearancebefore the court to which the appeal Is taken instanter, if said court be then in session; and if said court be not in session, then at its next regular term, stat~ing

the time and place of~holdlng the sam~e, and there remain from day to day and term to term,and answer In said cause in sala court." Article 834, Code of Criminal Procedure of Texas, reads as follows:

'Inappeals from justiceand corporation courts,when the appeal bond provided for in the preceding article has been filedwith the justice or judgewho tried the case, the appeal in such case shall be held to be perfected. No appealHon. W.E. Yancy, page 3 O-1759

shallbe dismissed because defendant failed to give notice of appeal in open court, nor on account of any defect in the transcript." Article 836, Code of Criminal Procedure of Texas, reads as follows:

"If the defendant is not in custody, a notice of appeal shall have no effectwhatever until the required appeal bond has been given and approved; and such appeal bond shall, in all cases, be given within ten days after the judgment of, the court refusing a new trial has been rendered, and not afterward." Article 837, Code of Criminal Procedure of Texas, reads as follows:

"Inall appeals from justiceand corporation courts to the county court, the trial shall be de novo In the county court, the same as if the prosecution had been originally conrmencedin that court." Article 838, Code of Criminal Procedure of Texas, reads as follows:

"Inappeals from justiceand corporation c0urt3, all the originalpapers In the case, togetherwith the appeal bond, if any, and togetherwith a certified transcript of all the proceedings had inthe case before such court shallbe deliveredwlthout delay to the clerk of the court to which the appealwas taken, who shall file the same and-docket the case.' Article 911, Code of Criminal Procedure of Texas, reads as follows:

“A Justice may, for good cause shown, grant the defendant a new trial,whenever such justice shall consider that justicehas not been done the defendant in the trial of such case.' Article 912, Code of Criminal Procedure of Texas, reads as follows:

"Anapplication for a new trial must be made within one day after the rendition of judgment, and not afterward; and the execution of theHon. W.E. Yancy, page 4 0-1759

judgment shall not be stayed until a new trial has been granted." The case of Guenzel vs. State, 47 Cr.R. 111, 80 SW 371, holds thatwhere a defendant was convicted in justice court and a defective appeal bond to the county courtwas given and the defendantallowed to go free, he could not afterwards within the ten days again subject himself to the jurisdiction of the justicecourt and give another and sufficientbond, so as to perfect his appeal; that an imperfectappeal bond from justice to county court cannot be amended; that there are two ways by which county court can acquire jurisdiction;one is where defendantremains in the custody of the sheriffand the record so shows and the other iswhere defendantgives a good appeal bond.

The case of Chatfield vs. State, 47 SW 2nd 315, Texas Court of CriminalAppeals, holds thatwhere motion for new trial is not made within one day after judgment,as required by statutes, justice loses jurisdictionto set aside judgment and thatwhere defendant is not in custody,appeal bond must be filedwithin ten days after judgment of the justiceof the peace. In this case the judgment of the justicecourtwas entered May 27, 1931, convicting the defendant. Appellant filed his appeal bond on June 9, 1931 and transcript filed in the county court,at the next term of the county court the State moved to dismiss appellant's appeal because appellant'sappeal bona had not been filed within the time allowed by law. The county courtdismissed the appeal fromwhich appellant appealed to the court of criminal appeals. The judgmentof the Court of CriminalAppeals was rendered March 2, 1932, about ten months after the original conviction. The Court of Criminal Appeals affirmed the judgmentof the county court.

The case of Ex Parte Jones, 128 Cr. R. 380, 81 SW 2nd 706, Texas Court of CriminalAppeals, holds that, an appeal to county~court from justicecourt the complaintmust be read orwaived, suchplea must be entered as defendant sees fit, evidencemust be heard and verdict and judgmentrendered in accordancewith lawwithout regard to evidence,plea ormanner of conduct trial took in justice court.
As we view it, the purpose of Article 1052,~supra, is to provide compensation for the justice of the peace forhis Services Indisposing of criminal actions before him which are final judgments insofaras his jurisdiction is concerned. If the defendant is acquitted and the State's attorney makes the proper certificate the justice is entitled to his fee. If the defendant is convicted and no new trial be grantedwithin the time allowed by law, the judgment of conviction is final inso-. -

Hon. W.E. Yancy, page 5 0-1759

far as the jurisdictionof the justicecourt is concerned. If the defendant is convicted in justice court and appeals to county courtby filing a defective bond and motion to dismiss appeal is granted in the county court and no appeal had therefrom to the~court of CriminalAppeals, or if the judgmentof the county court in dismissing the appeal is affirmed by the Court of CriminalAppeals, the judgment in the justicecourt 'isvalid and enforceable. The effect of such appealswas to delay the enforcement of and the collection of the final judgmentof-~thejustice court. As pointed out in opinion No. O-616, supra, the justiceof the peace's right to compensation from the countydoes not depend upon the collection or enforcement of the judgmentbut rather on the rendition of his final judgment. - You are, therefore,respectfullyadvised that it is the opinion of thisDepartment that your question shouldbe answered in the negative and it is so answered.
Yours very truly ATTORNEY GENERAL OF TEXAS By s/Wm. J. Fanning Wm. J./Fanning Assistant WJF:hW:wc
APPROVEDDEC 13, 1939 s/Gerald C. Mann ATTORNEYGENERALOF TEXAS Approved Opinion CommitteeBy s/BWB Chairman