NEY GENERAL 

EXAS 

,GROVER SELLERS AUEVIXN 11.1'EXAS 

August 7, 1945 

Hon. Sam B. .Ha)l 

County Attorney 

Hamlson County 

Marshall, Texas 

Attention: Mr+ Robert M. Sllee 

Dear Sir: 

Opinion No. O-6661 

Re: In a peace bond proceeding, where the accused 

haa been placed under 

bond,, 1s the Justice- of ,- 

Peace, as magistrate,entitled to fees as in criminal bases? And/related 

questiona. 

Ue acknowledge receipt of your letter in which you 

request the oplnlbn of ‘this depatment on the following questlonst 

“(1) 

“(2) 

“(3) 

In a peace bond proceeding, before a 

magistrate, under Arts. 79 and 80, 

c. c. P., where the accusea has been 

placed under a bond after a hearing, 

makes the bond required by the court, 

and pays the costs of such proceeding 

to the County, is the Justice ol the 

Peace.entltled to fees as any other 

criminal case, or la he &titled to 

fees as in civil cases.7 

In a similar case a8 Number 1 above, 

except where the accused has failed 

to make bond and pay costs, and Is 

placed In jail, Is the Justice of 

the Peaae entitled to any fees? 

In the fact situation of Number 2 above, 

are the other officers,entitled to half 

cost If he serves the time In jail? 
Hon. Sam B. Hall, page 2 (O-6661) 

"(4) In the event a person legally placed 

under a peace bond after a hearing 

before a magistrate, and he falls to 

make such bond, does the Justice of 

the Peace have authority to revoke 

said order and release the defendant; 

and if not, is there any remedy whereby he may obtain his release without 

making the bond?" 

tHaae SiM 

By virtue of Article 33, V. A. C. C. P., a Justice of 

the Peace is ex-officio a magistrate. When the Justice of the 

Peace sits as a magistrate, his powers and jurisdiction are 

fly of a magistrate and exclusive of hi ffi 

Justice of the Peace. Brown v. State (Ct. Crlm.'Agp. &1$;55 

Crlm. Rep. 572, 118 S. W. 139,143. 

A peace bond proceeding ls before a magistrate and 

the proceeding 1s "generally regarded in the nature of criminal 

proceedings". Ex parte Garner (Ct. Crlm. App. 1922),246 S. W. 

371, 372, citing cases in other states holding such proceedings 

criminal. In sustenance of this opinion we find provision for 

such proceedings In our Code of Criminal Procedure and reference 

therein to the "charge" as against the 'accused'. 

We must look therefore to the Code of Criminal Procedure for provision as to the amount of fees in such case for the 

magistrate. 

Articles 1052 and 1074, V. A. C. S., provide, In part, 

as follows: 

“Art. I.052. Three Dollars shall be patd by the 

county to the County Judge, or Judge of the Court at 

Law, 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 having 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 therof, a xritten account specifying each criminal action in which he 

claims such fee, certified by such Judge or Justice tt 

be correct, and filed with the County Clerk. . . . 
- ‘ 

Hon. Sam B. 'Hall; Page ? (O-6661) 

"Art. 107$., In each case of conviction ln,a 

Co t Cou t 0 a, County Court at Law whether b 

a ynU&'or Xy'a Eour,t there shall be tkxed agains 3 

the defendant or' against all' ‘de,fendants, when sev-. 

era1 are held jointly, a ,trial fee of Five Dollars, 

the same,to collected and paid over In the same 

manner asln the,case of a jury fee, and In the 

Justioe Court the trral fee shall be the sum of 

Four Dollars."' 

It is evident that these Artl.cles pr,ovide fees for a 

Justice,of the Peace as a Justice of 'the Peace and not in any 

other character or office. 

Taking another view, Article 1052, supra, provides 

fees only foreach"'drlmlna1 action" tried and finally disposed of before the Justice of the Peace. Article 24; V. A. P. 

C defihes "criminal action" as "the whole or any part of the 

p&sedure which the law provides for brdngtng offendey@c$tz 

justice". Art. 90, V. A. C. C. P. , provides that if It appears 

to the magistrate that defendant has committed a "criminal 

offense" the same proceedings shall be had as In other cases 

where parties are charged with crime. 

We think It clear that there cannot be an "offender" 

until there isan offen'se. If an offense has been commltted, 

the proceedings then shall be had as In other cases where partiesare charged with crime. We therefore conclude that a 

~requlre~metit o,f pea&e b6hd by,-8 niagi.str~a~te Is not a "criminal 

action" as contemplated in Article .lO52, supra. ,It is our 

"further conclusion that a requirement of peace bond is not a 

"conviction" as contemplated by the Legislature in Article 

1074, aupra, for the reason that there cannot be a "conviction" 

unleas there has been an offense. 

We think It significant that specific provision Is 

made defining fees for a Justice of the Peace when sitting as 

an examining court (Art. 1020, V. A. C. C. P. ), wherein the 

Justice sits as a magistrate and not as a Justice of the Peace. 

Brown v., State, supra, p. 142. 
Hon. Sam B. Hall, page 4 '(O-6661 

‘In answer, to your first question, It is our opinion 

that the Legislature has Sailed to provide compensation or fees 

for a,Justlce of the Peace slttlng as a magistrate in a peace 

bond proceeding, 'for it 1s well establlshed that “to entitle 

an officer to recelve,Sees or’comml.sslons, the receipt thereof 

must have been provided and the amount fixed by law. 34 Tex. 

Juris, page 522, with numerous cases cited. This principle is 

concrete In foundation for a See ls’essentlally a creature of 

statute, and we cannot improvise analogy or by lmpllcatlon 

McCal1s.v. 

5.4,655), 

City of Rockdale, et al, Corn. App. 1922,246 S. W. 

for In 80 doing we would be In usurpation of a Power 

conferred upon the Legislature by Article 3, Section 44 of our 

Texas ConStitUtion. 

Our statutes having Sailed to fix the amount of Sees, 

“until the Legislature does so, neither the courts nor interested 

party, nor any officer of the government can Six it.” State of 

Texas v. Moore (Sup. Ct. 1.882),57 Tex. 307,321. 

This being our answer to your first question, it 

follows that your second question Is answered in the negative 

by reason of like failure of provlsion for fees. 

With reference to your third question, since in a 

peace bond proceeding there Is no provlslon~for “fine” nor 

is a peace bond, requirement a “misdemeanor”, Article 1055, 

V. A. C. C. P. , ,which provides for half Sees to other officers 

and to which you refer, Is In our opinion InapplIcabLe. Your 

third question ia accordingly answered in the negative. 

Article 85, v. A. c. c. P. ,provldes that if the defendant falls to give bond “he shall be committed to jail for one year 

from the date of the first s requiring such bond.” 

ours). 

(Rmphasls 

As herelnbeiore stated, a Justice of the Peace sits 

as a magistrate and not as a Justice of the Peace In a peace 

bond proceeding. We know of no statute authorizing a magistrate 

ln’a peace bond proceeding to revoke hls order once It Is made. 

The statute in wording commands that the defendant be committed. 

There Is no discretion resting In the magistrate. 

Therefore, in answer to your fourth question, It 1s our 

opinion that the only remedy whereby the defendant may obtain his 
. . L 

Hon. Sam B. Hall, page 5 (0-6661) 

release is by writ of-habeas COF US'. 

ct. Grim. App. E 26 

Ex parte Wilkinson 

427; Ex parte SalamY 

Ct. Crlm. App. (2dj 487; 

Yours very truly, 

ATTORNEYGENERAL OFTEXAS 

BY s/Elton M. Hyder, Jr. 

Elton',M.-Hyder, Jr. 

Assistant 

EMR?rt:aa 

APPROVED AUGUST 7, 1945 

s/Carlos Ashley 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Committee By s/BWB Chairman