. . 

R-566 

THEATTOWNEY GENERAL 

OP TEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

‘%ULilTIN 11. m 

June 23, 1947 

Hon. Elmer H. Parish 

District Attorney 

Wichita County 

Wichita Falls, Texas 

Dear Sir: 

Opinion No. V-260 

Re: The authority of a 

Justice of the Peace 

to charge the fee 

allowed by Article 

1052, V.C.C.P. ,when 

he sits as a “Court 

of Inquiry” under 

Arttcle 006,V.C.C.P. 

In your letter dated June 6, 1947, receipt 

of which was acknowledged on June 9, 1947, you requested 

an opinion -of this Department on the following: 

Way a Justice of the Peace in a 

county of more than 20,000 population, 

charge the $2.50 fee as allowed by Article 1052, C.C.P., when he sits as a 

magistrate under Article 886, C.C.P., as 

a court of Inquiry, wherein he adduces 

sufficient evidence to warrant prosecution, and complaint is made based upon 

that evidenoe and docketed as a new 

case on his docket and then disposed of 

by the Justice of the Peace? 

“In the case at hand, no individual was under arrest; the Justice of the 

Peace was conducting a hearing to ascertain if any law had been violated, and, 

if so, by whom.” 

Article 1052, V.C.C.P., provides in part: 

” 

. . .Two dollars and fifty cents 

shall be paid by the county to the Justice of the Peace, for each criminal aotion tried and finally disposed of before him.” 

Article 886, V.C.C.P., provides: 

When a Justice of the Peace has 

good cause to believe that an offense 
Hon. Elmer H. Parish - Page 2 

has been, or is about to be, coanitted against the laws of this 

state! he may summon and examine 

any witness in relation thereto. 

If it appears from the statement 

of any witness that an ~offense 

has been oomaitted, the Justioe 

shall reduce said statements to 

writing and cause the same to be 

sworn to by each witness making 

the same; and issue a warrant for 

the arrest of the offender, the 

same as If complaint had been 

made and filed.” 

Article 24 of Vernon’s Penal Code provides: 

‘“A criminal action means the 

whole or any part of the procedure 

which the law provides for bringing 

offenders to justice; and the terms 

‘prosecution’ and t accusation’ are 

used in the same sense.” 

In Brown v, State, 118 S. I:‘. 139, the Court, 

in discussion a “Court of Inquiry” held by a Justice of 

the Peace, stated: 

“He was summoning before himself as Justice of the Peace, witnesses solely for the purpose, and 

only with the view of asoertaining 

If any crimes or violations had been 

committed. . . He had no case before 

him; he was investigating as Justice 

of the Peace, with a view and for 

the purpose of finding, or procuring, 

or originating a case or cases.W 

It will be noted that Article 1052, V.C.C.P., 

provides that the fee shall be paid to the Justice of the 

Peace “for each criminal a&ion triad and finally disposed of before him.” A *Court of Inquiry” as provided 

for in Article 886, V.C.C.P., is not a proceeding in which 

a criminal action is tried and finally disposed of but an 

inquiry to determine whether or not a criminal action 

should be instituted. 
. . 

Hon. Elmer H. Parish - Page 3 

Article 886, V.C.C.P., provides that if it appears to the Justice of the Peace that an offense has been 

committed he shall “issue a warrant, for the arrest of the 

offender, the same as if a complaint had been made and 

filed.” It is well settled that the complaint is the initial step in a critinal prosecution. 12 Tex. Juris. 382. 

It therefore appears that Article 886, V.C.C.P., is providing another method of instituting a criminal action. 

If it appears at the court of inquiry that no offense has 

been committed and no warrant is issued, then no criminal 

action is ever commenced, But if the evidence at the inquiry is sufficient to justify the issuance of a warrant 

and one is in fact issued, a criminal action is at that 

time commenced and in no wise tried and finally disposed 

Of. If no warrant is issued but a complaint is made based 

upon the evidence adduced at the court of inquiry and docketed on the docket of the Justice of the Peace, the criminal action is commenced upon the filing of the cosiplaint 

and a criminal action is not tried and finally disposed 

of until all the issues of law and fact have been determined, and the final judgment entered. 

Fee statutes are strictly construed and UAless there is an express authority to pay a fee none may 

be paid. There is no provision made for paying a fee to 

a Justice of the Peace for holding a court of inquir’y as 

provided for in Article 886, V.C.C.P. It is a familiar 

rule with respect to compensation of public officers that 

they shall receive such ‘salary, fees, or compensation OAtii 

as may be prescribed by law. 

posed 

If an additional duty is 

is 

upon an .officer for which no fee or compensation 

fixed by law, the duty must be performed as an additional burden imposed by law without extra compensation thsrefor. This rule has been uniformly followed by the courts 

and by the opinions of this department. 

ion No. V-144) 

(Atty. Gen. OpinIt therefore follows that your question 

should be answered in the negative. 

SUMMARY 

Public officers shall only receive such 

salary, fees, or compensation as my be prescribed by law. A Justice of the Peace may 

AOt charge the fee provided for in Article 

1052, V.C.C.P., where he sits as a Court of 
Hon. Elmer H. Parish - Page 4 

Inquiry under the provisions of Artiele 886, 

V.C.C.P., inasmuch as a "Court of Inquiry" 

is not a criminal action. 

Very truly yours 

A!l'TORNEYGENERAL OF TEXAS 

BY ?!kz$%* 

Assistant 

EW:et:djm:'#El APFROVED: