. . R-566



### THEATTOWNEY 

### GENERAL

OP TEXAS

**PRICE DANIEL**  **ATTORNEY GENERAL**  ‘%ULilTIN11.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 byArticle 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 onJune 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 byArticle 1052, C.C.P., whenhe 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 madebased 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 wasunder arrest; the Justice of the Peace was conducting a hearing to ascertain if any law hadbeen violated, and, if so, bywhom.” Article 1052, V.C.C.P., provides in part: ”

. . .Twodollars 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 offenseHon. Elmer H. Parish - Page 2

has been, or is about to be, coanitted against the laws of this state! hemaysummonand examine anywitness in relation thereto. If it appears from the statement of anywitness that an~offense has been oomaitted, the Justioe shall reduce said statements to writing and cause the sameto be sworn to byeach witness making the same; andissue awarrant for the arrest of the offender, the sameas If complaint had been madeand filed.” Article 24 of Vernon’s Penal Codeprovides:

‘“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 taccusation’ are used in the samesense.” In Brownv, State, 118S. I:‘

. 139, the Court, in discussion a “Court of Inquiry” held by a Justice of the Peace, stated:

“Hewas summoningbefore himself as Justice of the Peace, witnesses solely for the purpose, and only with the view of asoertaining If any crimes or violations hadbeen committed.

. . Hehadno case before him; he was investigating as Justice of the Peace, with aview andfor 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 andfinally 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 sameas if a complaint had been madeand filed.” It is well settled that the complaint is the initial step in a critinal prosecution. 12Tex. 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 andnowarrant is issued, then no criminal action is ever commenced, But if the evidence at the inquiry is sufficient to justify the issuance of awarrant and one is in fact issued, a criminal action is at that time commencedand in nowise tried and finally disposed Of. If nowarrant is issued but a complaint is madebased upon the evidence adduced at the court of inquiry and docketed on the docket of the Justice of the Peace, the criminal action is commencedupon the filing of the cosiplaint and a criminal action is not tried and finally disposed of until all the issues of law andfact 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 madefor 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 maybe 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 lawwithout extra compensation thsrefor. This rule has been uniformly followed by the courts andby 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. AJustice of the Peace may AOtcharge the fee provided for in Article 1052, V.C.C.P., where he sits as a Court ofHon. 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

OFTEXAS



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