### 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 thepeace to retain aportion of assessed fines for thepurpose of funding additional positions (RQ-1851)
Dear Ms. Sanchez-Vera:
You askwhether a justice of the peace may, with the authorization and approval of the commissioners court, assess a $50 fine inaClass Cmisdemeanor "bad check" case and retain a portion of the fine topay the salary of an additional employee inhis office.
You advise that a justice of thepeace "is swamped with hot checks under $20.00" and the commissioners court refuses toprovide 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 aportion of the fine topay the salary of an additional employee forhis office. Section 112.052 of the Local Government Code provides that a fine imposed by a justice of thepeace 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 inan attempt to collect the fine, or showing that the finehas been satisfied by imprisonment or labor.1



### 1. TheUnited States Supreme Court inTate v. Short, 401U.S. 395 (1971) held that a defendant may not .be imprisoned because he is toopoor topay his fine. & Attorney General Opinion JM-977 (1988).

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

Commissioners courts may exercise only suchpowers 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 aportion of fines assessed to hire an additional employee.
Topermit a justice of thepeace to assess a minimum fine of $50 inevery Class Cmisdemeanor hot check case to pay the salary of an employee would alsoviolate the United States and Texas Constitutions. Section 12.23 of the Penal Code provides that aperson adjudged guilty of a Class C misdemeanor shall bepunished by a fine not to exceed $200. The system under consideration would make thepenalty in a Class C misdemeanor hot check case inJim Wells County a fine of not less than $50normore than $200. InAttorney General Opinion JM-880 (1988) a statute allowing a commissioners court to set fees inmisdemeanor cases was found unconstitutional. Attorney General Opinion JM-880 stated:

InTexas, costs in misdemeanor criminal cases are assessed aspart of thepunishment. ExDar-, 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~;nJM-443 (1986). Cf. United States v.

809 F.2d 1504 (11th Cir. (hold&g imposition of costs aspunishmeAz8:b be constitutional). A law allowing different costs to be assessed indifferent counties for the same penal offense would have the effect of allowing the aenaltv for statedefined crimes tovarv from countv to county andwould violate both 'due nrocess' and 'equal urotection' constitutional rishts. U.S. Const., 5thAmend., 14thAmend.: Tex. Const., art. suora. SeeMeiet":: iziteEX 6~~'~eW.~~'"~?~ (Tex.App.

-- Houston [14thbist.] 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 aminimum $50 fine in every Class C misdemeanor hot check case in order todefray the cost of an additional employee would result inthe penalty for a state defined crime tobe different inJim Wells County than it is in other counties andwould violate both "dueprocess" and "equal protection" constitutional rights.

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

SUMMARY
A countv commissioners court mav not authorize a-justice of thepeace to retain a portion of assessed fines for thepurposes of funding an additional employee.

JIM MATTOX Attorney General ofTexas
MARY KELLER FirstAssistant Attorney General
LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Tom G. Davis Assistant Attorney General

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