Hon. B. J. Stewart CountyAttorney Real County Camp Wood, Texas
Dear Sir: OpinionNo. O-594
Re: When is a Justiceof the Peace entitledto his trial fees in a case he has tried,end is~he entitledto. any fees in cases filed by complaintbut dismissed by motion of the oountyattorney?
Your re9ue.dfor an opinionon the above statedclue&ionhas.been received by this office.
Article 1052, Code of CriminalProcedure,reads as follows:
"Th&c Dollarsshell be paid by the County to the County Judge, or .;i: Judge of the Cousttat Law, andTwo Ibllersand fifty cents shall be paid by the countyto the Justiceof the Peace, for each criminalaction tried and finallydisposedof before him. Provided,however,that i~¶ all countieshaving a populationof 20,000 or less, the Justiceof thePeaceshall receivea trial fee of Three Dollars. Such Judge or Justiceshell presentto the Commissioners' Court of his countyat a regularterm thereof,a writtenaccountspecifyingeach criminalaction in which he claimssuch fee, certifiedby such Judge or Justicato be correct,and filed with the County Clerk. The Conmissioners' Court shall approvesuch accountfor such amount as they find to be correct, and order a draft to be issuedupon the County Treasurerin favor of such Judge or Justicefor the amount so approved. Providedthe Com- issioners'Court shall not pay any accountor trial fees inany ease tried and in which an acquittalis had unless the State of Texas was representedin the trial of said cause by the CountyAttorney,or his assistant,CrimdnalDistrictAttorney,or his assistant,Criminal DistrictAttorneyor his assistant,and the certificateof said Attor- ney is attachedto said account certifyingto the fact that said cause was tried,and the State of Texas was represented, and that in his judgmentthere was sufficientevidencein said cause to demanda trial of same."
The plain and specificlanguageof the above quoted statutein that the judge or justiceof the peace must both try and finallydisposeof the case before him to be entitledto the fee providedtherein. Hon. B . J. Stewart,April 10, 1939, page 2 (O-5&)
In the case of Brackenridgevs. State, 11SW 630, the court, in passing upon a similarquestionused the followinglanguage:
?Phe case must have been tried and finallydisposedof before him, he must both try and finallydisposeof it, such is the plain languageof the statute,a triai is an examinationbefore a cornpatent tribunal,accordingthe laws of the llnd, of the facts put in issue in a case, for the Iurposeof determiningsuch issued.
"A dismissalof a case is to send it out of a courtwithout a trial upon any issue involvedin it. It is the final dispositionof that particularcase, 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 disposedof on motion to aounty judgewss entitledto a fee under Article 1052, Code of CriminalPro>edure,payableby the county. We do not think the case establishesa differentrule as laid down in the case of Braakenridgevs. State, 11 SW 630, supra,for there is a distinction in a motion to quash and a motion to dismiss.
You are respectfullyadvisedthat it is the opinionof this Departnentthat in compliancewith Article 1052, Code of CriminalProcedure,the Commissioners' Court must at a regularsessionpay to the