THE ATTORNEY GENERAL 

OF TEXAS 

December 19, 1989 

Honorable Jesusa Sanchez-Vera Opinion No. JM-1120 

Jim Wells County Attorney 

P. 0. Drawer 2080 Re: Whether a commissioners 

Alice, Texas 78333 court may authorize a justice 

of the peace to retain a portion of assessed fines for 

the purpose of funding additional positions (RQ-1851) 

Dear Ms. Sanchez-Vera: 

You ask whether a justice of the peace may, with the 

authorization and approval of the commissioners court, 

assess a $50 fine in a Class C misdemeanor "bad check" case 

and retain a portion of the fine to pay the salary of an 

additional employee in his office. 

You advise that a justice of the peace "is swamped with 

hot checks under $20.00" and the commissioners court refuses 

to provide additional help for the office. The justice 

requests the authorization and approval of the commissioners 

court to assess each hot check violator a fine of $50 and 

retain a portion of the fine to pay the salary of an additional employee for his office. 

Section 112.052 of the Local Government Code provides 

that a fine imposed by a justice of the peace shall be 

charged against the justice. 

112.052 provides that the 

Subsection (b) of sect:.; 

justice may discharge 

indebtedness by filing a county treasurer's receipt for the 

amount with the county clerk, showing to the satisfaction 

of the commissioners court that the justice has used due 

diligence in an attempt to collect the fine, or showing that 

the fine has been satisfied by imprisonment or labor.1 

1. The United States Supreme Court in Tate v. Short, 

401 U.S. 395 (1971) held that a defendant may not .be 

imprisoned because he is too poor to pay his fine. & 

Attorney General Opinion JM-977 (1988). 

P. 5888 
Honorable Jesusa Sanchez-Vera - Page 2 (JM-1120) 

Commissioners courts may exercise only such powers as 

are specifically conferred upon them by the constitution 

or the statutes. Canales v. Laughlin, 214 S.W.2d 451, 453 

(Tex. 1948); see Tex. Const. art. V, § 18. Neither the 

constitution nor the statutes empower the commissioners 

court with authority to allow a justice of the peace to 

retain a portion of fines assessed to hire an additional 

employee. 

To permit a justice of the peace to assess a minimum 

fine of $50 in every Class C misdemeanor hot check case to 

pay the salary of an employee would also violate the United 

States and Texas Constitutions. Section 12.23 of the Penal 

Code provides that a person adjudged guilty of a Class C 

misdemeanor shall be punished by a fine not to exceed $200. 

The system under consideration would make the penalty in a 

Class C misdemeanor hot check case in Jim Wells County 

a fine of not less than $50 nor more than $200. In Attorney 

General Opinion JM-880 (1988) a statute allowing a commissioners court to set fees in misdemeanor cases was found 

unconstitutional. Attorney General Opinion JM-880 stated: 

In Texas, costs in misdemeanor criminal 

cases are assessed as part of the punishment. 

Ex Dar-, 159 S.W.2d 126 (Tex. Crim. 

App. 1942): Ex aarte Mann, 46 S.W. 828 (Tex. 

Crim. App. 1898). See also Attorney General 

",ifh~;n JM-443 (1986). Cf. United States v. 

809 F.2d 1504 (11th Cir. 

(hold&g imposition of costs as punishmeAz8:b 

be constitutional). A law allowing different 

costs to be assessed in different counties 

for the same penal offense would have the 

effect of allowing the aenaltv for statedefined crimes to varv from countv to county 

and would violate both 'due nrocess' and 

'equal urotection' constitutional rishts. 

U.S. Const., 5th Amend., 14th Amend.: Tex. 

Const., art. 

suora. See Meiet":: iziteEX 6~~'~eW.~~'"~?~ 

(Tex. App. --Houston [14th bist.] 1982, pet. 

ref'd). See also Ex Parte Fercuson, 132 

S.W.2d 408 (Tex. Crim. APP. 1939); Ex uarte 

Sizemore, 8 S.W.2d 134 (Tex. Crim. App. 

1928). (Emphasis added.) 

Id. at 3. Assessment of a minimum $50 fine in every Class C 

misdemeanor hot check case in order to defray the cost of an 

additional employee would result in the penalty for a state 

defined crime to be different in Jim Wells County than it is 

in other counties and would violate both "due process" and 

"equal protection" constitutional rights. 

P. 5889 
Honorable Jesusa Sanchez-Vera - Page 3 (JM-1120) 

SUMMARY 

A countv commissioners court mav not 

authorize a-justice of the peace to retain a 

portion of assessed fines for the purposes of 

funding an additional employee. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

P. 5890