                            E               NEY       GENERAL

                                     OF       EXAS

                                 ~USTXN.    TEXAS     78711
CElAW'PORD   C. MARTIN

                                     September 1, 1970



        hon. Enrique Ii. Pena                Opinion MO. M- 679
        County Attorney
        Room 201, City-Co;;&Bldg.            Re:     Whether a Justice of
        El Paso, Texas                               the Peace who transfers
                                                     a criminal case to
       Attention:        Steve W. Simmons            another Justice of the
                         First Assistant             Peace in the same county
                                                     is entitled to a four
                                                     dollar fee as provided
                                                     in Art. 1052, Texas Code
        Dear Sir:                                    of Criminal Procedure?

            You have asked an opinion of this office as to
       whether a Justice of the Peace on a fee basis is entitled
       to a fee for a criminal case which he has transferred
       to another court in the same county.

             Art. 1052, Texas Code of Criminal Procedure,
        provides, in part, as follows:

                    "Four dollars ($4) shall be paid
                    to the Justice of the Peace for
                    each criminal action tried and
                    finally disposed of before him...."

        Art. 1052 answers your question fully. Uy the use of
        the conjunctive word, "and", the Leg~islature has made clear
        its intent that a criminal action must be first tried,
        and, in addition, must also be finally disposed of by
        the Justice of the Peace before he is entitled to collect
        the four dollar fee due him for the performance of
        these two functions.

             Utilizing the rule of construction that words in
        a statute should be construed with reference to the
        common and ordinary usage of the words, we conclude
        that the definition cf "trial" as found in Article
        1052 is well defined in Drackenrcdqe v. State, 11 S.W.
        f30 (Tex.Civ.AnP. 1881). no writ). having before i,t
        suustantially ‘the Same~StatUtory langUag6 as in Article
        1052, the court held that a county judge was not
        entitled to a fee for actions dismissed without trial.

                                            -3244-
Hon. Enrique II. Pena, paqe 2 (PI-679)



The Court said:

           "A trial is an examination before
           a competent tribunal, according
           to the laws of the land of the
           facts put into issue for the purpose
           of determining such issue."

     Obviously, therefore, no trial is had by the justice
court where that court transfers the case to another court
for trial of the facts nut into issue.


                             SJI~L'IARY
                             __,-
     "A Justice of the Peace is npt entitled to
     dollect a fee for actions transferred or
     dismissed without trial. 43.-t.1052, Texas
     Criminal Procedure."
                                    ?
                              Your,5 very truly,
                                             I




Prepared by Bennie X. Bock, II
Assistant Attorney General

APPROVED:
OPINIOl? Co:*lE~:ITTEE

Kerns Taylor, Cllairman
w . c . Allen, Co-Chairman
William J. Craiq
Scott Garrison
Dunk Sullivan
Gordon Cass

HEADC F. GRIFFI::
Staff Legal Assistant

ALFRCD T,?ALE;ER
Executive Assistant

iJOLA ::!IITE
First Assistant ;;\ttorneyGeneral

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