1'HE ATI-OISNEY GENERAL OF TEXAS GSRAL.DC.MANR AUSVIZU II.TgxAs a *--mm7 -.a* Hon.iwable Joe J. 'Fisher DistriotAttofney San Augustine, Texaa
Dear Sirr Opinion No. 0491 Rei Ii~the Justiceof.thePeace of RswttinCountyentitledtothe stat- utcry fee mentionedin Article 1052, @de of CriminalProcedure,where the oriminalaction is dismissed.onmotion of the 6tate'sattorney)
Your requestfor a8 opinionon the,abovestatedquestionha8 been reoeived'bythii bfWo$. .
Article1052, Code cf CriminalProcedure,reado as follanse
'"Three'dollars rhallbe paid by the ccunty ta the county judge,or judge of the court at law, end two dollarsand fifty cents she31be paid bythe oounfq to the justiceof the peace, for each oriminal actiontried and finallydispciedof befcre h5xb Presided,however, that in all countleahavinga populationof 20,000 or less,,the justiceof the peaoe shallreceive a trial fee of three dollars. Such judge or jurtioe&all presentte the Coxvairrionsrs' Court of his countyat a regularterm thereof,a writtenlooouatspeoi- fylng each criminalaction in which he claims such fee, oertified by oertaiajydge or justiceto be acrmot and filed withthe countyclerk. The C!cmmOssioners'-Court &all approvesuch ao- oount for such amounta8 they find to be correct,and order a draft to be issuedupon the countytreasuryin favor of suoh judge or justicefor the maount so approved. Providedthe Com- missioners'Court shall not pay oqy amount or trial fee in any case tried and in which an aoquittalis had unlerrthe State of Texas nes representedia the trial of said cause bythe oountJl attorneycr his arrlntant,orimiaaldistrictattorneyor his assistant,and the oertifioatoof said atterneyir attachedto said aooountoertwig to the faot that raid causewanstried, md the State of Texas was reprerented,and that In hie judg- ment therewas suffiolentevidenoein said cause tc demanda trial of the acme."
In the cadgeof Braokenridge v. State, 11 S.W. 6SG, the oourt, in passingupon a similarquesticm,used the followinglanguages "The oaaemust have been tried md finallydispcsedof beforehim, he must bth try and finallydisposecf it, suoh ia the plain languageof the statute. The trial is an examination before a competenttriMcal, aooord- ing to the laws ef the land, of the facts put in issue Hem. Joe J. Fisher,page 2 (O-391)
in a case, for tho purpcseof determiningruoh iarueo.
*A dilPaisra1 of the case is to send it out of the oourtwithout a trial upon any issue involv- od in it. It ir the final dirporitionof that particularcase, lut it is not a trial of It."
In the oaso; Riohardsonv. State,4 8.11.(2) 79, holdn in offoctthat when the case was disposedof bgmotien to quash,the County Judgo~8 ontitlodto a foo odor Article 1062, Cods of CriminalProooduro, payableby the county, m do not think the o a 8olatabliohoda different rule as laid down in the ease of Braokonridgev. State, rupra,for there is a diatinotionin amotionto quash and a motion tc dismiss.
The plain and spooifiolanguageof Artiole 1052, SUPZ-II,is that the judgo and justiceof the peacemust both try and finallydispom of the case before him to be entitledto the ~fooprovidedthorsin.
This doprbnont has ropoatodlyhold that a justiceof tho poaoo is not ontitlodto tho foes providedby Article 1032, supra,when tho caoo io dismissedupon motion of the &ate's attorney,
You are rospoctfullyadvisedand it is the opinionof this departmentthat the justiceof tho