R-600

PRICE DANIEL AUWTIN 11. - ATTORNEY

GENERAL 

### July 25, 1947

Hon. Looneg E. Lindsey County Attorney Upshur County -.- - Opinion **NO.** 

### v-312 Re: Obligation of a Gllmer, Texas Juatlce of the Peace to accept or collect and to account for fhe3 and costa in his Dear 

### Sir: court.

‘You have requested an opinion from partment concerning the following questions: this De-

“1. Are justices of the peace Equlred to collect finea, Costa), etc., In their oourts and if so, what is their compensation?

“2. Are justices of the peace authorized to colleat fines, coats, etc. assessed in their COWtS, and if so, what is 

### their coiapensation?



### “3. Does the record keeping and accounting for monies collected aa costs and finea by justlaes of the peace under Article 

### 1619, v.A.c.s. 1925, constitute a part of the official duties of their offices and If 80, what Is their oompen**B.StiOll?**

‘!4. Arejustices of ’ the peace rie- %MdE:; :?;!A ;~si proper oases o,npleas of guilty and tendered to ,such justices either by the defendant or liy an officer collecting 3ameif the justice remands the defendant to the officer for the satisfaction of same?" Wequote the following pertinent statutOry provisiona:Hon. Looney E. Lindsey - Page 2, V-312

Art. 

### 944, V.C.C.P. "All officers charged by law with collecting moneyin the nameor for the use of the S,tate shall report in writing under oath to the respective district oourts of their aeveral counties, on the first day of each term, the amounts of moneythat have cometo their hands since the last ter8 of their respective courts aforesaid.’ Art. 945, V.C.C.P.

“Such repart &all at&e:

“1. me amount oolleoted. :2. Uhonaa from rlhom,aollmted.



### “3. Byvirtue OSvhat p~ooorr, 

### ool1ectrd.



### “4. The dirporition that haa boon madeof 

### the wnq.

“5. IS no'money has been .collecteU, the 

### repoh shall so atate.'
Art. 

### 946, V.C.C.P. 'A report, 'suck 

### aa Is 

### required by the tvo pr0a.d~ articles, llhal.1al.80 bo rd. of all 

### money8oolleotod for the countP vbich ropart ahallbe rd. to eaah mgular ora 

### ef the comlasioners court 

### foreach oouaty." Al?*&

### 947, V.C.C.P. "llir ofSlaers.charged by law with the collection of money; within the meaning of the three preceding artiolea, **and** whoare 

### required to 

### makethe reports thereln mentioned, apex District and county attorneys, clerk8 of the district and oountJ OOWts, she#lSSr, ~constables, ,+nd$.mtlaes of the peaoo. Art. 950, V.C.C.P. "The distiict or county at30rn*y ah&iHon. Looney E. Lindsey - Page 3, V--312

be entitled to ten per oent of all fines, forfelturea’or moneys collected for the State 

### orcounty, upon judgments recovered by him; and the clerk of the court in which said judgments are rendered shall be entitled to five per cent of the 8.. mount of said judgments, to be paid out of the amountwhenoollected.” Art. 951, V.C.O.P,

“The ~sheriff or other officer, except ajustice of the peace or his clerk, who colleata moneyfor the State or county, except jury fees, under any provision of this Code, shall be entitled to retal: five per cent thereof when oollected. (Emphasis ours) Art. 1619, V.C.9.

“Finea iapoaed andjudgments rendered by justices of the peace shall be charged ;glzIethe justice imposing or rendering

Hemaydischarge .aald lndebtedneaa by filing with the county clerk the treasurer’s recei t for the Smountthereof, or by showing to #i he aatlafaction of the’ conuniasionera court that he has used due diligence to collect the samewithout avail, or that the samehave been aatlafled by imprisonment or labor. ” !SheCourt held in the case of !4cLennanCounty v. Boggeaa, 104 Tex. 311, 137 S.W. 346, that Article 1143, V.C.C.P. (1911) (now Article 950, V.O.O.P.) vaa Inapplicable to a justice of the peace. lie quote the following from said case: :
.

'With regard to the OOlleCtion of ,finea, Sorroiturea, or nioneydue the state or county, vhile article 1013, (now 947) Code of Criminal Procedure, charges justioes of the peaoe with the duty of oollectlng money, within the meaning of article8 1010, 1011, and 1012 (now 944, 945, 946) of the Oode T; Criminal Pro-Hon. Looney E. Lindsey - Page 4, V- 312

cedure, which relate 

### tothecollection of moneyin the nameof the state, 

### and the report thereof to the reapeative district Courts of 

### theirae~veralcounties, and of moneycollected for the county to the commissioners’ court for each county, and prescribing the nature of such report, it **I.3** clear that the exercise of such duty of collection means only their authority to receive the moneyfrom the person adjudged to pay, or from the officer by whomit IS in fact collected, and **pay** over to the proper source. It la Umaterlal whether or not the justice, aa such officer, should in the exercise of his duty bd required to perform someservices without compensation having been provided therefor by law.’ Such is held to be incident to the office, ‘upon the acceptance of whidh the obligation to perform is impoadd. -The mere fact that the nature of his office and the duties Imposed require him to perform, in addition to judicial, 

### certain ministerial services, Is not aufficient to warrant the implication that, because 5 per cent of the judgment collected is awarded the clerk of the court in which such judgment la recovered, therefore it was the intent and purpose of the lawmaker to 

### include ,in the tery

‘clerk’ that of justice of the peace. (Perentheais ours) In view of the foregoing, it la the mandatory duty of the justice of the peeae~to exercise due diligence to coll~ot $inea.baieaaed 3.nhis Court; to accept 

### suchsines and,aoatp tqmdsred to himby 

### t@e defendant or by an:‘oSSicar vho~~h~p’qolleated the same; to keep a record df-allL~,qon$@b Pskeived~by~hlm lbpayrent of sines; an4 trJ:siaka,~~~popt~‘thp~eoS 19d to a~- count for acmeet thistiqa a+ in thQqurSner‘pre--~ scribed by the statutes.

TheConatitutlpn firer the’ oo~enaatlon that nay be paid oertaln offlsera and $uthori@6b the tigialature to fix the &mpenabtion of.:qthqy.,gSSicera. The 

### ruleinTaxra relative’to compenaatioh of public officials la that “M~orficer maynot cldipl or receive mgEon. Looney E. Lindsey - Page 5/V-312

mdneywithout a'law authorieing himto do so, and clearly fixing the amount to whioh he la entitled." RcLsnnan County v. Boggess, aupra. 'Binford v. Robinson, 

### 244S.W. 

### 807;. Crosby County Cattle Company v. McDermett, 

### 281~S.W.293; Duclos v. Rarrls County, 291 S.W. 611, affirmed 298 S.W. 

### 417.

This office has repeatedly ruled that a justice of the.peace Is not entitled to retain commissions 

### onSines collected. Attorney General's Opinions Hos.'O-1162, O-4091, O-5108 and 0-5180.

Therefore, it is our Surther opinion that the justioes of the peace are not entitled to compensation for collecting fines and aosta assessed in their courts or for keeping a reoord and aooounting for asme.. SUMMARY

It is the mandatory duty of ajustice of,the peace to exercise due dillgenae to colleot Sines assessed in his Court; to accept such Sines and coats whentendered to himby the defendant or by an officer whohas collected same; to keep a record of all moneys received by him in,psyment of fines; to makereports thereof and amount for Sameat the times and in the manner ptieticribed by the stattites. Such duties are’an.Lncld6nt to the office bf justiioe -of the peace for which no apecial compensation has been provided by the Legislature. McLennancounty v.



### 104Tex. 

### 311,137S.W.,346; 

### ;f;B;44, 945,946,947,950,951,

. . . .;Art. 1619, V.C.S. Very truly yours JR:djm ATTORREYGE&RALOFTEXAS



# %7fZSiv+

Assistant