YEWIE EPMERAL 

OF ?i?EXAS 

Honorable Denver E. Perkins 

County Attorney 

Gonzales County 

Gonzales, Texas Opinion No.O-2683 

Re: Justices of the Peace - 

Trial fees. 

Dear Sir: 

Your request for opinion has been received and 

carefully considered by this department. We quote from your 

request as follows: 

"It has been the custom in our County for 

many years for the Justice of the Peace, on a plea 

of guilty, to enter a judgment of conviction 

against the defendant, and, if the defendant has 

no money, the Justice of the Peace quite often 

permits him to go at large without bail or recognizance and to accept periodical payments of lnstallments on the fine and costs. It aometimes 

happens that the defendant dies or leaves the State 

before the fine and costs are paid. It quite often 

happens that neither the Justice of the Peace nor 

the Constable make any further effort to collect 

the fine and costs after judgment is entered, even 

though the defendant still lives in the County, 

However, the Justice of the Peace always presents 

his bill on the first of the month to the Commissioners' Court for his fee of $2.50 in such 

case, Our Auditor has advised the Commissioners' 

Court that the Justice of the Peace is not due a 

fee in such a case since it is not a case that 

has been tried and finally disposed of by the 

Justice of the Peace. Needless to say, our justices of the peace take a different view of the 

matter. They have asked me to submit these facts 

to you for an oplnlon as to whether or not they 

are entitled to their fees before the fine and 

costs are paid. 
Honorable Denver E. Perkins, Page 2 (No.O-2683) 

"Of course, where judgment is deferred, 

no fees would be due until the judgment is at 

least made and entered by the Justice of the 

Peace on his docket against the defendant. 

"The County Auditor takes the position 

that these articles require the judgment to be 

extended (i.e., fine paid or defendant jailed) 

immediately upon its entry and that unless It 

Is executed the case has not finally been dlsposed of. 

"Our County Judge In discussing the matter 

with me takes the position that the Justices of 

the Peace are not entitled to their fees In such 

case unless they show that they have shown due 

diligence In collecting the amount adjudged 

against the defendant. His view is that, if the 

defendant is dead or beyond the reach of the officers, the Justice Is due his fees; if the defendant still lives in the County and the officers could execute the judgment, but fall to 

do so, that the Justice Is not due his fee. 

"I have taken the position that if a judgment 

of conviction Is entered and not deferred that 

it should be executed at once and that the defendant should be committed to jail unless the fine 

and costs are paid In full and that there is no 

legal justification for allowing Installment 

payments of fines and costs. However, It is my 

position that If the Justice of the Peace Ignores 

this provision of law and enters the judgment on 

conviction or plea of guilty and no appeal is 

taken from the judgment that the case has nevertheless been finally disposed of and that the 

Justice of the Peace Is entitled to his fee, regardless of whether or not he shows any diligence 

to collect the fine and costs." 

Article 1052, Vernon's Annotated Texas Code of Criminal Procedure, reads as follows: 

"Three Dollars shall be paid by the county to 

the County Judge, or Judge of the Court at law, 
- - 

Honorable Denver E. Perkins, page 3 (No.O-2683) 

and Two Dollars and fifty cents shall be paid by 

the county to the Justice of the Peace, for each 

criminal action tried and finally disposed of 

before him, Provided, however, that in all counties havlng a population of 20,000 or less, the 

Justice of the Peace shall receive a trial fee of 

Three Dollars. Such Judge or Justice shall present to the Commissioners' Court of his county 

at a regular term thereof, a written account 

specifying each criminal action in which he claims 

such fee, certified by such Judge or Justice to 

be correct, and filed with the County Clerk. The 

Commissioners1 Court shall approve such account 

for such amount as they find to be correct, and 

order a draft to be issued upon the County Treasurer in favor of such Judge or Justice for the 

amount so approved. Provided the Commissioners' 

Court shall not pay any account on trial fees 

in any case tried and in which an acquittal is 

had unless the State of Texas was represented In 

the trial of said cause by the County Attorney, 

or his assistant, Criminal District Attorney or 

his assistant, and the certificate of said Attorney is attached to said account certifying to the 

fact that said cause was tried, and the State of 

Texas was represented, and that in his judgment 

there was sufficient evidence in said cause to 

demand a trial of same." 

Article 783, Vernon's Annotated Texas Code of Criminal 

Procedure, reads as follows: 

"When the defendant Is only fined the judgment shall be that the State of Texas recover of 

the defendant the amount of such fine and all 

costs of the prosecution, and that the defendant, 

if present, be committed to jail until such fine 

and costs are paid; or if the defendant be not 

present, that a caplas forthwith issue, commanding the sheriff to arrest the defendant and commit 

him to jail until such fine and costs are paid; 

also, that execution may Issue against the property of such defendant for the amount of such 

fine and costs." 
Honorable Denver E. Perkins, Page 4, (N&0-2683) 

Article 787, Vernon's Annotated Texas Code of 

Criminal Procedure, reads as follows: 

"When a judgment has been rendered against 

a defendant for a pecuniary fine, If he is present, he shall be imprisoned in jail until discharged as provided by law. A certified copy of 

such judgment shall be sufficient to authorize 

such imprisonment." 

Article 788, Vernon's Annotated Texas Code of Criminal Procedure, reads as follows: 

"When a pecuniary fine has been adjudged 

against a defendant not present, a capias shall 

forthwith be issued for his a~rrest. The sheriff 

shall execute the same by placing the defendant 

in jail." 

Article 698, Vernon's Annotated Texas Code of Crlminal Procedure, reads as follows: 

"On each verdict of acquittal or conviction, 

the proper judgment shall be entered immediately. 

If acquitted the defendant shall be at once dlscharged from all further liability upon the charge 

for which he was tried; provided that, in misdemeanor cases where there is returned a verdict, 

or a plea of guilty is entered and the punlshment assessed is by fine only, the Court may, 

on written request of the defendant and for good 

cause shown, defer judgment until some day fixed 

by order of the Court; but in no event shall 

the judgment be deferred for a longer period 

of time than six (6) months. On expiration of 

the time fixed by the order of the Court, the 

Court or Judge thereof, shall enter judgment on 

the verdict or plea and the same shall be executed as provided by Chapter 4, Title 9, of the 

Code of Criminal Procedure of the State of Texas, 

Provided further, that the Court or Judge thereof, 

in the exercise of sound discretion may permit the 

defendant where judgment is deferred, to remain 

at large on his own recognizance, or may require 

him to enter into bond in a sum at least double 

the amount of the assessed fine and costs, condltioned that the defendant and sureties, Jointly 
_ . -. 

Honorable Denver E. Perkins, Page 5 (No. O-2683) 

and severally, will pay such fine and costs 

unless the defendant personally appears on the 

day set in the order and discharges the judgment 

in the manner provided by Chapte,r 4, Title 9 of 

the Code of Criminal Procedure of the State of 

Texas; and for the enforcement of any judgment 

entered, all writs, processes and remedies of the 

Code of Criminal Procedure are made applicable 

so far as necessary to carry out the provisions 

of this Article.” 

Opinion No. O-616 of this department holds that the 

Justice of the Peace's right to compensation. from the county 

for his trial fee under Article 1052, C.C.P., does not depend 

upon the collection or enforcement of the judgment but rather 

on the rendition of & final judgment in so far as the Jurisdiction of his court Is concerned. 

Opinion No, O-1759 of this department, holds among 

other things, that the Justice of the Peace is entitled to 

his trial fee when the judgment he renders becomes final 

in so far as his court and jurisdiction are concerned, For 

example, If a defendant was tried and found guilty, filed 

motion for new trial within the statutory time and the court 

overruled the motion and the defendant filed an appeal bond 

within the statutory time in order to appeal his case from 

the justice to the county court, the Justice's judgment Is 

final in so far as his court is concerned and he is entitled to his trial fee from the county, regardless of the 

outcome of the case in the county court or the court of 

criminal appeals. 

Opinion No.O-1251 of this department holds that 

where judgment is deferred under Article 698, Vernon's 

Annotated Texas Code of Criminal Procedure, the justice 

of the peace would not be entitled to his trial fee from 

the county until the deferred judgment was entered and 

until thereafter the statutory time had elapsed to make 

it final In so far as the Jurisdiction of the justice was 

concerned. 

Opinion No. O-1868 of this department holds that 

where one justice took a plea of guilty and entered judgment 

and another justice issued commitment and placed the defendant 

In jail, that the first justice was entitled to the trial fee. 

It was also held in this opinion that it was immaterial as to 
.- h 

Honorable Denver E. Perkins, Page 6, (No. O-2683) 

which justice collected all or a portion of the fine and costs. 

We enclose herewith copies of Opinions Nos. O-616, 

O-1251, O-1759 and O-1868, which contain full discussion of 

these questions. 

Under Article 698, the justice may defer judgment 

in the manner outlined by the statute. However, he cannot 

receive his trial fee from the county until the deferred judgment Is entered and becomes final in so far as his jurisdlction Is concerned. If he enters judgment he has no authority 

to extend credit to the defendant and permit him to go without 

paying his fine and costs. When his judgment Is entered It Is 

the duty of the arresting officer to collect the fine or 

place the defe~ndant in jail, unless prevented by defendant's 

appeal from said conviction in the manner outlined by law. 

However, the justice of the peace is entitled to 

his trial fee from the county when his judgment becomes final 

in so far as his jurisdiction is concerned. We are also of 

the opinion that the unauthorized and illegal acts of the 

justice in extending credit to donvlcted defendants would not 

defeat his legal claim against the county for his trial fees 

legally earned. 

It is the opinion of this department that your posltlon in the matter is correct. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By s/ Wm.J. Fanning 

Wm. J. Fanning 

Assistant 

WJF:AWzbt 

APPROVED Sept.5,1940 

Gerald C. Mann 

Attorney General of Texas 

Approved Opinion Committee 

By BWB, Chairman