Hon. W.E. Yancy 

County bud itor 

Tarrant County 

Fort Worth, Texas 

Dear Sir: Opinion No. O-1759 

Re: Under Article 1052, C.C.P., can 

the county auditor legally withhold justice's fees on cases which 

are appealed to county court, paying such fees only upon dlsposltlon of the cases by the county 

court? 

Your request for opLnion upon the above question has 

been received and considered by this department. We quote 

from your letter as follows: 

"Please give us an opinfon from your Department on the constructIon of ArtLcle 1052, Code 

of Criminal Procedure relative to disposition 

of fees to Justice of the Peace in criminal cases. 

"Article 1052 reads in part 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'.... 

"The point we are Interested in is: whether 

or not the county auditor can legally withhold 

justice fees on cases which 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 pending disposition by the County 

Court depends upon the construction and meaning 

of the term 'disposed of before him' and whether 

or not a case Is finally disposed of when 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 cases 
Hon. W.E. Yancy, page 2 o-1759 

are finally disposed of before the justice of 

the peace where an appeal has been made to the 

County Court.." 

Opinion No. O-616 of this Department, 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 in all counties having a population in excess of 20,000 Inhabitants and $3.00 In 

all counties having a population of 20,000 inhabltants or less 

for-each criminal action tried and finally disposed of before 

him, such fees to be pald by the county when such claims are 

filed in compliance with Article 1052, C.C.P., and that It is 

immaterial whether the defendant who is convicted in such 

criminal action pays his fine and costs or works his ffne and 

costs out on the county farm, public roads or other public 

works of the county, or satisfies such fine and costs by staying in jail a sufficient length of time to discharge his fine 

and costs. 

Article 833, Code of Criminal Procedure of Texas, reads 

as follows: 

"In appeals from the judgments of justice or 

corporation courts, the defendant shall, if he 

be In custody, be committed to jail unless he 

give bond with sufficient security, to be approved by the court from whose judgment the 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 defendant was convicted 

and has appealed, and be conditioned that the defendant shall make his personal appearance before 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: 

'In appeals from justice and corporation 

courts, when the appeal bond provided for in the 

preceding article has been filed with the justice 

or judge who tried the case, the appeal in such 

case shall be held to be perfected. No appeal 
Hon. W.E. Yancy, page 3 O-1759 

shall be 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 effect whatever 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: 

"In all appeals from justice and 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 conrmenced in that 

court. " 

Article 838, Code of Criminal Procedure of Texas, reads 

as follows: 

"In appeals from justice and corporation 

c0urt3, all the original papers In the case, 

together with the appeal bond, if any, and together with a certified transcript of all the 

proceedings had inthe case before such court 

shall be delivered wlthout delay to the clerk 

of the court to which the appeal was 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 justice has not been done 

the defendant in the trial of such case.' 

Article 912, Code of Criminal Procedure of Texas, reads 

as follows: 

"An application for a new trial must be made 

within one day after the rendition of judgment, 

and not afterward; and the execution of the 
Hon. 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 that where a defendant was convicted in justice court 

and a defective appeal bond to the county court was given and 

the defendant allowed to go free, he could not afterwards 

within the ten days again subject himself to the jurisdiction 

of the justice court and give another and sufficient bond, so 

as to perfect his appeal; that an imperfect appeal bond from 

justice to county court cannot be amended; that there are two 

ways by which county court can acquire jurisdiction; one is 

where defendant remains in the custody of the sheriff and the 

record so shows and the other is where defendant gives a good 

appeal bond. 

The case of Chatfield vs. State, 47 SW 2nd 315, Texas 

Court of Criminal Appeals, holds that where motion for new 

trial is not made within one day after judgment, as required 

by statutes, justice loses jurisdiction to set aside judgment 

and that where defendant is not in custody, appeal bond must 

be filed within ten days after judgment of the justice of the 

peace. In this case the judgment of the justice court was 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's appeal 

bona had not been filed within the time allowed by law. The 

county court dismissed the appeal from which appellant appealed to the court of criminal appeals. The judgment of the 

Court of Criminal Appeals was rendered March 2, 1932, about 

ten months after the original conviction. The Court of Criminal 

Appeals affirmed the judgment of the county court. 

The case of Ex Parte Jones, 128 Cr. R. 380, 81 SW 2nd 

706, Texas Court of Criminal Appeals, holds that, an appeal 

to county~court from justice court the complaint must be read 

or waived, such plea must be entered as defendant sees fit, 

evidence must be heard and verdict and judgment rendered in 

accordance with law without regard to evidence, plea or manner 

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 In disposing of criminal actions before him which are 

final judgments insofar as 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 granted within the 

time allowed by law, the judgment of conviction is final inso- 
. - 

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

far as the jurisdiction of the justice court is concerned. If 

the defendant is convicted in justice court and appeals to 

county court by filing a defective bond and motion to dismiss 

appeal is granted in the county court and no appeal had therefrom to the~court of Criminal Appeals, or if the judgment of 

the county court in dismissing the appeal is affirmed by the 

Court of Criminal Appeals, the judgment in the justice court 

'is valid and enforceable. The effect of such appeals was to 

delay the enforcement of and the collection of the final 

judgment of-~the justice court. As pointed out in opinion No. 

O-616, supra, the justice of the peace's right to compensation from the county does not depend upon the collection or 

enforcement of the judgment but rather on the rendition of 

- his final judgment. 

You are, therefore, respectfully advised that it is the 

opinion of this Department that your question should be 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 

APPROVED DEC 13, 1939 

s/Gerald C. Mann 

ATTORNEYGENERALOF TEXAS 

Approved Opinion Committee By s/BWB Chairman