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 acknowledgereceipt of your letter in which you request the oplnlbn of ‘this depatment on the followingquestlonst “(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 requiredby the court, and pays the costs of such proceeding to the County, is the Justice ol the Peace.entltledto 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 situationof 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 legallyplaced under a peace bond after a hearing before a magistrate,and he falls to make such bond, does the Justice of the Peace have authorityto revoke said order and release the defendant; and if not, is there any remedywhereby he may obtain his releasewithout making the bond?"

tHaae SiM

By virtue of Article 33, V. A. C. C. P., a Justice of the Peace is ex-officioa magistrate. When the Justice of the Peace sits as a magistrate,his powers and jurisdiction are fly of a magistrateand exclusiveof 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 magistrateand the proceeding1s "generallyregarded in the nature of criminal proceedings".

Ex parte Garner (Ct. Crlm. App. 1922),246S. W. 371, 372, citing cases in other statesholding such proceedings criminal. In sustenanceof this opinionwe find provisionfor such proceedingsIn our Code of CriminalProcedureand reference therein to the "charge"as against the 'accused'.

We must look thereforeto the Code of CriminalProcedure for provisionas 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 finallydisposedof before him. Provided,however, that in all countieshaving 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 therof, a xritten account specifyingeach criminalaction in which he claims such fee, certifiedby 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 convictionln,a Co t Cou t 0 a, County Court at Law whether b a ynU&'orXy'a Eour,t there shall be tkxed agains 3 the defendantor'

against all'

‘de,fendants,

when sev-. era1 are held jointly,a ,trial fee of Five Dollars, the same,to collectedand paid over In the same manner asln the,caseof 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 characteror office. Taking another view, Article 1052, supra,provides fees only foreach"'drlmlna1 action" tried and finallydisposed of before the Justice of the Peace. Article 24; V. A. P. C defihes "criminalaction" 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 magistratethat defendanthas committeda "criminal offense" the same proceedingsshall be had as In other cases where parties are chargedwith crime.
We think It clear that there cannot be an "offender" until there isan offen'se. If an offensehas been commltted, the proceedingsthen shall be had as In other cases where partiesare chargedwith crime. We thereforeconclude that a ~requlre~metit

o,f pea&e b6hd by,-8

niagi.str~a~te

Is not a "criminal action" as contemplatedin Article .lO52,supra. ,It is our "furtherconclusionthat a requirementof peace bond is not a "conviction"

as contemplatedby the Legislature in Article 1074, aupra, for the reason that there cannot be a "conviction" unleas there has been an offense.
We think It significantthat specificprovision Is made defining fees for a Justice of the Peace when sitting as an examiningcourt (Art. 1020, V. A. C. C. P. ), wherein the Justice sits as a magistrateand 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 Legislaturehas Sailed to provide compensationor fees for a,Justlceof the Peace slttlngas a magistrate in a peace bond proceeding,'forit 1s well establlshedthat “to entitle an officer to recelve,Seesor’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 foundationfor a See ls’essentlally a creatureof statute,and we cannot improviseanalogy or by lmpllcatlon McCal1s.v. 5.4,655), City of Rockdale,et al, Corn. App. 1922,246S. W. for In **80** doing we would be In usurpationof a Power conferredupon the Legislatureby Article 3, Section 44 of our **Texas ConStitUtion.**  Our statuteshaving Sailed to fix the amount of Sees, “until the Legislaturedoes so, neither the courts nor interested party, nor any officer of the governmentcan 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 proceedingthere Is no provlslon~for“fine” nor is a peace bond,

requirementa “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 accordinglyanswered in the negative. Article 85, v. A. c. c. P. ,provldesthat if the defendant falls to give bond “he shall be committedto jail for one year from the date of the first s requiring such bond.” ours). (Rmphasls

As herelnbeiorestated, a Justice of the Peace sits as a magistrateand not as a Justice of the Peace In a peace bond proceeding. We know of no statute authorizinga magistrate ln’a peace bond proceedingto revoke hls order once It Is made. The statute in wording commands that the defendantbe committed. There Is no discretionresting In the magistrate. Therefore, in answer to your fourth question, It 1s our opinion that the only remedy whereby the defendantmay obtain his. . L

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

release is by writ of-habeasCOF 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/EltonM. Hyder, Jr. Elton',M.-Hyder,

Jr. Assistant
EMR?rt:aa APPROVEDAUGUST 7, 1945 s/CarlosAshley FIRST ASSISTANT ATTORNEY GENERAL ApprovedOpinion CommitteeBy s/BWB Chairman