Honorable Charles R, Martin 

County Auditor 

Harrison County 

Marshall, Texas 

Dear Sir: Opinion No. 0-2~877 

Re: Article 1055, C.C~.P. Fees of 

Justice of the Peace and Constable under facts stated. 

Your request for opinion has been received and carefully considered by this department. We quote from your request 

as follows: 

"The Legislature in 1939 enacted a law amending Article 1055, of the Code of Criminal Procedure of Texas, 1925, and declaring an emergency, 

which provides that the county shall be liable for 

one-half of the fees in a misdemeanor case to the 

officers of the court where defendant fails to pay 

his fine and lays his fine out in the County Jail 

or discharges the same by means of working such fine 

out on the county roads OP on any county project. 

"QUESTION: Where a Justice of the Peace, or 

Constable, who are compensated on a fee basis in 

this county, conducts an examining trial, or makes 

the arrest etc., as the case may be, in a case that 

is bound over to the Grand Jury and party is tried 

and convicted of the offense of driving and operating a motor vehicle while under the influence of 

intoxicating liquor, A FELONY, and given a fine and 

jail sentence, or both, and defendant lays his fine 

and jail sentence out in the County Jail, or discharges the same by means of working same out on the 

county roads or on any county project, would the 

county be liable for l/2 costs? 

"QUESTION: In the event you should answer question number one in the negative, would the county 

be liable for one-half costs to any officer for 

examining trial fees where party was indicted for 

felony, and the offense reduced to a misdemeanor. 

For instance, where party was indicted for assault 
_. . 

Honorable Charles R. Martin, page 2 

to murder, a felony, and found guilty _ -. I ._ 

of a misdemeanor and r‘lne or jail sentence, or both, assessed against the defendant?" 

o-2077 

Article 1055, Vernon's Annotated Texas Code of Criminal 

Procedure, reads as follows: 

"The county shall be liable to each officer 

and witness having costs in a misdemeanor case for 

only one-half thereof where the defendant has satisfied the fine and costs adjudged against him in full 

by labor in the workhouse, on the county farm, on 

the public roads or upon any public works of~the 

county; and to pay such half of such legal costs as 

may have been so taxed, not including commissions, 

the county judge shall Issue his warrant upon the 

county treasurer in favor of the proper party, and 

the same sha11 be paid out of the road and bridge 

fund or other funds not otherwise appropriated." 

Article 1019, Vernon's Annotated Texas Code of Criminal 

Procedure, reads as follows: 

"If the defendant is indicted for a felony and 

upon conviction his punishment is by fine or confinement in the county jail, or by both such fine 

and confinement in the county jail, or convicted of 

a misdemeanor, no costs shall be paid by the State 

to any officer. All costs in such cases shall be 

taxed, assessed and collected as in misdemeanor cases." 

-(Underscoring ours) 

Article 1065, Vernon's Annotated Texas Code of Criminal 

Procedure, reads as follows: 

"The following fees shall be allowed the sheriff, 

or other peace officer performing the same services 

in misdemeanor cases, to be ,taxed against the defendant on conviction: 

"1 e For executing each warrant of arrest or 

capias, or making arrest without warrant, two dollars. 

"2 . For summoning each witness, seventy-five 

cents. 

“3 o For serving any writ not otherwise provided 

for, one dollar, 

“4 D For taking and approvlng each bond, and re- 
Honorable Charles R. Martin, page 3 o-2877 

turning the same to the court house, when necessary, 

one dollar and flfty cents, 

"5 * For each commitment or release, one dollar. 

"6 . Jury fee, in each case where a jury is actually summoned, one dollar. 

"7 . For attending a prisoner on habeas corpus, 

when such prisoner, upon a hearing, has been remanded to 

custody, or held to bail, for each day's attendance, 

four dollars. 

"8 . For conveying a witness attached by him to 

any court out of his county, four dollars for each 

day or fractional part thereof, and his actual necessary expenses by the nearest practicable public conveyance, the amount to be stated by said officer, 

under oath and approved by the judge of the court 

from which the attachment issued. 

“9 . For conveying a prisoner after conviction to 

the county jail, for each mile, going and coming~by 

the nearest practicable route by private conveyance, 

ten cents a mile, or by railway, seven and one-half 

cents a mile. 

"10. For conveying a prisoner arrested on a warrant or capias Issued from another county to the court 

or jail of the county from which the process was issued, 

for each mile traveled going and coming, by the nearest 

practicable route, twelve and one-half cents. 

"11. For each mile he may be compelled to travel 

in executing criminal process and summoning or attaching witness, seven and one-half cents. For traveling 

in the service of process not otherwise provided for 

the sum of seven and one-half cents for each mile going 

and returning. If two or more persons are mentioned In the same writ, or two or more writs in the same 

case, he shall charge only for the distance actually and 

necessarily traveled in the same." 

Article 1071, Vernon's Annotated Texas Code of Criminal 

Procedure, reads as follows: 

"Justices of the peace who sit as an examining court in misdemeanor cases shall be entitled 

to the same fees allowed by law to such justices 

fop similar services in the trial of such cases, 
Honorable Charles R, Martin, page 4 o-2877 

not to exceed three dollars in any one case, to 

be paid by the defendant In case of final conviction." 

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, 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 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 Commissioners' 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 OP 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 1072, Vernon's Annotated Texas Code of Criminal 

Procedure, reads as follows: 

"Sheriffs and constables serving process and 

attending any examining court in the examination 

of a misdemeanor case shall be entitled to such 

fees as are allowed by law for similar services 

in the trial of such cases, not to exceed three 

dollars in any one case, to be paid by the defendant in case of final conviction." 

The case of Ex Parte Shaffer, 92 SW (2nd) 250;'Texas 

Court of Criminal Appeals, in construing Article 1019, Vernon's 
-- 

Honorable Charles R. Martin, 'page 5 o-2877 

Annotated Texas Code of Criminal Procedure, held that a defendant convicted of a felony of driving while Intoxicated and 

sentenced to pay a fine of $100.00 could be confined to the 

county jail, county workhouse or county farm until he had satisfied the costs. 

Article 1019, supra, provides that in such cases (named 

in the statute) that the costs shall be taxed, assessed and 

collected as in misdemeanor cases. Therefore, we conclude that 

Insofar as the taxation, assessment and collection of such costs 

that such cases should be considered as misdemeanors for such 

purposes. 

In answer to your first question you are respectfully 

advised that it Is the opinion of this department that under 

the facts stated the county would be liable to the Justice of 

the Peace and constable for one-half of the legal fees due said 

officers. The fees of the Justice of the Peace,~underthe above facts, would be controlled by Articles 1052, 1071; and 

1055, supra. The fees of the constable, under the~~above ,stated 

facts, would be controlled by Articles 1065, lo72 and 1055, 

supra. 

Raving answered your first question in the affirmative 

it is not necessary to answer your second question. Eowever, 

we wish to point out that Article 1027, C.C.P., supra, excepts 

cases where the defendant is indicted for ~murder. Article 

1027, C.C.P., supra, also excepts county attorneys and criminal 

district attorneys from Its pPOvisiOns. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By s/wm. J. Fanning 

Wm. J. Fanning 

Assistant 

WJF:AW:wc 

APPROVED NOV 25, 1940 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee~By s/R.W.F. Chairman