YEWIE EPMERAL
OF ?i?EXAS

Honorable Denver E. Perkins County Attorney Gonzales County Gonzales, Texas OpinionNo.O-2683 Re: Justices of the Peace - Trial fees.

Dear Sir:

Your request for opinionhas been received and carefully consideredby this department. We quote fromyour 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 judgmentof conviction against thedefendant, and, if the defendanthas
no money, theJustice of the Peace quite often permits him to go at largewithout bail or recognizance and to acceptperiodicalpayments 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 thatneither the Justice of the Peace nor the Constablemake 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 alwayspresents his bill on the first of themonth to the Commissioners' Court for his fee of $2.50 in such case, OurAuditor has advised the Commissioners' Court that the Justice of the Peace isnot due a fee in such a case since it is not a case that has been tried and finallydisposed of by the Justice of the Peace. Needless to say, our justices of the peace take a differentview of the matter. They have askedme to submit these facts to you for an oplnlon as towhether 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 feeswould be due until the judgment is at leastmade and entered by the Justice of the Peace on his docket against the defendant.

"The CountyAuditor takes theposition that these articlesrequire the judgment to be extended (i.e., fine paid or defendant jailed) immediatelyupon its entry and that unless It Is executed the casehas not finallybeen dlsposed of.

"Our County Judge In discussing thematter 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 theposition that if a judgment of conviction Is entered and not deferred that it shouldbe executed at once and that the defendant should be committed to jail unless the fine and costs are paid In full and that there isno legal justificationfor allowing Installment payments of fines and costs. However, It is my position that If the Justice of the Peace Ignores thisprovision of law and enters the judgmenton conviction or plea of **guilty** and no appeal is taken from the judgment that the casehas neverthelessbeen finallydisposed of and that the Justice of the Peace Is entitled tohis fee, regardless ofwhether or not he shows any diligence to collect the fine and costs."

Article 1052,Vernon'sAnnotated TexasCode of Criminal Procedure, reads as follows:

"ThreeDollars 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 criminalaction tried and finally disposed of before him, Provided,however, that in all countieshavlng a population of 20,000 or less, the Justice of the Peace shall receive a trial fee of Three Dollars. Such Judge or Justice shallpresent to the Commissioners'Court of his county at a regular term thereof, awritten account specifyingeach criminal action inwhich he claims such fee, certifiedby such Judge or Justice to be correct, and filedwith the County Clerk. The Commissioners1Court shall approve such account for such amount as they find to be correct,and order a draft to be issuedupon 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 inwhich an acquittal is had unless the State of Texaswas represented In the trial of said causeby the CountyAttorney,
or his assistant,CriminalDistrictAttorney or his assistant,and the certificateof saidAttorney is attached to said account certifying to the fact that said causewas tried, and the State of Texas was represented, and that in his judgment therewas sufficient evidence in said cause to demand a trial of same."

Article 783,Vernon's AnnotatedTexas Code of Criminal Procedure, reads as follows:

"When the defendant Is only fined the judgment shallbe that the State of Texas recover of the defendant the amount of such fine and all costs of theprosecution, and that the defendant, if present, be committed to jail until such fine and costs arepaid; or if the defendantbe not present, that a caplas forthwith issue, commanding the sheriff to arrest the defendant and commit him to jailuntil such fine and costs are paid; also, that executionmay 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'sAnnotated Texas Code of Criminal Procedure, reads as follows:

"When a judgmenthas been rendered against
a defendant for a pecuniary fine, If he is present, he shall be imprisoned in jailuntil discharged as providedby law. A certified copy of such judgment shallbe sufficient to authorize such imprisonment."

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

"When a pecuniary fine has been adjudged against a defendantnot present, a capias shall forthwithbe issued forhis 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 shallbe entered immediately. If acquitted the defendant shall be at once dlscharged from all further liability upon the charge forwhich he was tried;provided that, inmisdemeanor caseswhere 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 judgmentuntil some day fixed by order of the Court; but in no event shall the judgmentbe deferred for a longerperiod of time than six (6)months. On expiration of the time fixedby 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 theexercise of sound discretionmay permit the defendantwhere judgment is deferred, to remain at large on his own recognizance,or may require him to enter intobond in a sum at least double the amount of the assessed fine and costs, condltioned that the defendant and sureties, Jointly_ . -.

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

and severally,will pay such fine and costs unless the defendantpersonally appears on the day set in the order and discharges the judgment in themanner provided by Chapte,r4, Title 9 of the Code of Criminal Procedure of the State of Texas; and for the enforcement of any judgment entered, allwrits, processes and remedies of the Code of Criminal Procedure are made applicable
so far as necessary to carry out theprovisions of this Article.”
OpinionNo. O-616 of this departmentholds that the Justice of the Peace's right to compensation. from the county forhis trial fee underArticle 1052, C.C.P., does not depend upon the collection or enforcement of the judgmentbut rather
on the rendition of & final judgment in so far as the Jurisdiction of his court Is concerned.

OpinionNo, O-1759 of thisdepartment,holds among other things, that the Justice of the Peace is entitled to his trial feewhen the judgmenthe renders becomes final in so far as his court and jurisdictionare concerned, For example, If a defendantwas tried and found guilty, filed motion for new trialwithin the statutory time and the court overruled themotion and the defendant filed an appealbond 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.

OpinionNo.O-1251 of this departmentholds that where judgment is deferred underArticle 698, Vernon's Annotated Texas Code of Criminal Procedure, the justice of thepeacewould not be entitled to his trial fee from the county until thedeferred judgmentwas entered and until thereafter the statutory timehad elapsed tomake it final In so far as the Jurisdictionof the justicewas concerned.

OpinionNo. O-1868 of this departmentholds 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 justicewas entitled to the trial fee. Itwas also held in this opinion that it was immaterialas to.- h

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

which justice collectedall or a portion of the fine and costs.

We enclose herewith copies of OpinionsNos. O-616, O-1251, O-1759 and O-1868,which contain full discussionof these questions.

Under Article 698, the justicemay defer judgment in themanner outlinedby the statute. However, he cannot receivehis 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 judgmenthe has no authority to extend credit to the defendant and permit him to go without payinghis 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, unlessprevented by defendant's appeal from said conviction in themanner outlinedby law.

However, the justice of thepeace is entitled to his trial fee from the countywhen his judgmentbecomes final in so far as his jurisdictionis concerned. We are also of the opinion that the unauthorizedand illegal acts of the justice in extending credit to donvlcted defendantswould not defeat his legal claim against the county for his trial fees legally earned.

It is the opinion of this department thatyour posltlon in thematter is correct.

Very trulyyours

ATTORNEYGENERAL OF TEXAS

By s/Wm.J. Fanning Wm. J. Fanning Assistant WJF:AWzbt APPROVED Sept.5,1940

Gerald C. Mann AttorneyGeneral of Texas Approved Opinion Committee By BWB, Chairman