Hon. B. J. Stewart

CountyAttorney Real County Camp Wood, Texas
Dear Sir: Opinion No. O-594
Re: When is a Justiceof the Peace entitled to his trial fees in a case he has tried,end is~he entitled to. any fees in cases filed by complaint but dismissed by motion of the oountyattorney?
Your re9ue.dfor an opinion on the above stated clue&ion has. been received by this office. Article 1052,Code of Criminal Procedure,

reads as follows: "Th&c Dollars shellbe paid by the County to the County Judge, or .;i: Judge of the Coustt

at Law, andTwo Ibllersand fifty cents shallbe paid by the countyto the Justiceof the Peace, for each criminal action tried and finally

disposed

of beforehim. Provided, however,

that i~¶ all counties

havinga population of 20,000 or less, the Justiceof thePeaceshall receive a trial fee of Three Dollars. Such Judge or Justice shell presentto the Commissioners' Court of his countyat a regular term thereof, a writtenaccount specifying each criminal

action in which he claimssuch fee, certified by such Judge or Justicato be correct,

and filedwith the CountyClerk. The Conmissioners' Court shall approve such account for such amount as they find to be correct, and order a draft to be issued upon the CountyTreasurer in favor of such Judge or Justice for the amount so approved. Provided the Comissioners'

Court shallnot pay any accountor trial fees inany ease tried and in which an acquittalis had unless the State of Texas was represented

in the trial of said causeby the CountyAttorney, or his assistant,

Crimdnal

District

Attorney,

or his assistant,

Criminal District

Attorneyor his assistant, and the certificate of said Attorney is attachedto 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 evidencein said cause to demanda trial of same." The plain and specific language

of the above quoted statute in that the judge or justice

of the peace must both try and finallydisposeof the case beforehim to be entitled to the fee provided therein.Hon. B
. J. Stewart, April 10, 1939, page 2 (O-5&)

In the case of Brackenridge vs. State, 11SW 

### 630, the court, in passing upon a similar

question

used the following language: ?Phe case must have been tried and finally disposed

of beforehim, he must both try and finallydispose of it, such is the plain language

of the statute,

a triai is an examination before a cornpatent tribunal,

according

the laws of the llnd, of the facts put in issue in a case, for the Iurposeof determining such issued.
"A dismissal

of a case is to send it out of a courtwithout a trial upon any issue involved in it. It is the final disposition of that particular

case, but is not a trial of it."
In the case,'Richardson vs. State, 4 SW 2nd 79, holds in effect thst when a case was disposed of on motion to Quash:the aounty judge wss entitled

to a fee underArticle 1052, Code of CriminalPro>edure, payable

by the county. We do not think the case establishes a different

rule as laid down in the case of Braakenridge vs. State, 11 SW 

### 630, supra, for there is a distinction in a motion to quash and a motion to dismiss.
You are respectfully advisedthat it is the opinionof this Departnent that in compliance

with Article 1052,Code of Criminal Procedure,

the Commissioners' Court must at a regular session pay to the justice

of the peace the fee as provided

by such statute

for each criminal

action tried and finallydisposed of beforehim.
You are furtheradvisedthat the justice of the peace is not entitled to such fee where there is no,trial of the ease beforehim but is dismissed .upon motion of the comty attorney, Trustingthat the foregoing answers your inquiry,

we remain Very truly yours, ATI!ORtEX

-L OF TEXAS s/Ardell Williams


### By ArdellWilliams

Assistant 

### AWrAW APPROVED: a/ Gerald C. Mann ATTORNEYUiEE!ALOFT!XAS