            YEWIE                      EPMERAL
                       OF   ?i?EXAS




Honorable Denver E. Perkins
County Attorney
Gonzales County
Gonzales, Texas       Opinion No.O-2683
                      Re: Justices of the Peace -
                          Trial fees.
Dear Sir:
          Your request for opinion has been received and
carefully considered by this department. We quote from your
request as follows:
         "It has been the custom in our County for
    many years for the Justice of the Peace, on a plea
    of guilty, to enter a judgment of conviction
    against the defendant, and, if the defendant has
    no money, the Justice of the Peace quite often
    permits him to go at large without bail or recog-
    nizance and to accept periodical payments of ln-
    stallments on the fine and costs. It aometimes
    happens that the defendant dies or leaves the State
    before the fine and costs are paid. It quite often
    happens that neither the Justice of the Peace nor
    the Constable make any further effort to collect
    the fine and costs after judgment is entered, even
    though the defendant still lives in the County,
    However, the Justice of the Peace always presents
    his bill on the first of the month to the Com-
    missioners' Court for his fee of $2.50 in such
    case, Our Auditor has advised the Commissioners'
    Court that the Justice of the Peace is not due a
    fee in such a case since it is not a case that
    has been tried and finally disposed of by the
    Justice of the Peace. Needless to say, our jus-
    tices of the peace take a different view of the
    matter. They have asked me to submit these facts
    to you for an oplnlon as to whether or not they
    are entitled to their fees before the fine and
    costs are paid.
Honorable Denver E. Perkins, Page 2 (No.O-2683)




         "Of course, where judgment is deferred,
    no fees would be due until the judgment is at
    least made and entered by the Justice of the
    Peace on his docket against the defendant.
          "The County Auditor takes the position
     that these articles require the judgment to be
     extended (i.e., fine paid or defendant jailed)
     immediately upon its entry and that unless It
     Is executed the case has not finally been dls-
     posed of.
         "Our County Judge In discussing the matter
    with me takes the position that the Justices of
    the Peace are not entitled to their fees In such
    case unless they show that they have shown due
    diligence In collecting the amount adjudged
    against the defendant. His view is that, if the
    defendant is dead or beyond the reach of the of-
    ficers, the Justice Is due his fees; if the de-
    fendant still lives in the County and the of-
    ficers could execute the judgment, but fall to
    do so, that the Justice Is not due his fee.
          "I have taken the position that if a judgment
     of conviction Is entered and not deferred that
     it should be executed at once and that the defen-
     dant should be committed to jail unless the fine
     and costs are paid In full and that there is no
     legal justification for allowing Installment
     payments of fines and costs. However, It is my
     position that If the Justice of the Peace Ignores
     this provision of law and enters the judgment on
     conviction or plea of guilty and no appeal is
     taken from the judgment that the case has never-
     theless been finally disposed of and that the
     Justice of the Peace Is entitled to his fee, re-
     gardless of whether or not he shows any diligence
     to collect the fine and costs."
          Article 1052, Vernon's Annotated Texas Code of Crim-
inal Procedure, reads as follows:
          "Three Dollars shall be paid by the county to
     the County Judge, or Judge of the Court at law,
-   -




        Honorable Denver E. Perkins, page 3   (No.O-2683)



             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 coun-
             ties havlng 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 pre-
             sent 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
             Commissioners1 Court shall approve such account
             for such amount as they find to be correct, and
             order a draft to be issued upon the County Treasu-
             rer in favor of such Judge or Justice for the
             amount so approved. Provided the Commissioners'
             Court shall not pay any account on 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 Attor-
             ney 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 783, Vernon's Annotated Texas Code of Criminal
        Procedure, reads as follows:
                  "When the defendant Is only fined the judg-
             ment shall be that the State of Texas recover of
             the defendant the amount of such fine and all
             costs of the prosecution, and that the defendant,
             if present, be committed to jail until such fine
             and costs are paid; or if the defendant be not
             present, that a caplas forthwith issue, command-
             ing the sheriff to arrest the defendant and commit
             him to jail until such fine and costs are paid;
             also, that execution may Issue against the prop-
             erty of such defendant for the amount of such
             fine and costs."
Honorable   Denver   E. Perkins, Page 4, (N&0-2683)


          Article 787, Vernon's Annotated Texas Code of
Criminal Procedure, reads as follows:
          "When a judgment has been rendered against
     a defendant for a pecuniary fine, If he is pre-
     sent, he shall be imprisoned in jail until dis-
     charged as provided by law. A certified copy of
     such judgment shall be sufficient to authorize
     such imprisonment."
          Article 788, Vernon's Annotated Texas Code of Crim-
inal Procedure, reads as follows:
          "When a pecuniary fine has been adjudged
     against a defendant not present, a capias shall
     forthwith be issued for his a~rrest. The sheriff
     shall execute the same by placing the defendant
     in jail."
          Article 698, Vernon's Annotated Texas Code of Crlm-
inal Procedure, reads as follows:
          "On each verdict of acquittal or conviction,
     the proper judgment shall be entered immediately.
     If acquitted the defendant shall be at once dls-
     charged from all further liability upon the charge
     for which he was tried; provided that, in mis-
     demeanor cases where there is returned a verdict,
     or a plea of guilty is entered and the punlsh-
     ment assessed is by fine only, the Court may,
     on written request of the defendant and for good
     cause shown, defer judgment until some day fixed
     by order of the Court; but in no event shall
     the judgment be deferred for a longer period
     of time than six (6) months. On expiration of
     the time fixed by the order of the Court, the
     Court or Judge thereof, shall enter judgment on
     the verdict or plea and the same shall be exe-
     cuted as provided by Chapter 4, Title 9, of the
     Code of Criminal Procedure of the State of Texas,
     Provided further, that the Court or Judge thereof,
     in the exercise of sound discretion may permit the
     defendant where judgment is deferred, to remain
     at large on his own recognizance, or may require
     him to enter into bond in a sum at least double
     the amount of the assessed fine and costs, condl-
     tioned that the defendant and sureties, Jointly
_   .   -.



             Honorable Denver E. Perkins, Page 5 (No. O-2683)



                  and severally, will pay such fine and costs
                  unless the defendant personally appears on the
                  day set in the order and discharges the judgment
                  in the manner provided by Chapte,r4, Title 9 of
                  the Code of Criminal Procedure of the State of
                  Texas; and for the enforcement of any judgment
                  entered, all writs, processes and remedies of the
                  Code of Criminal Procedure are made applicable
                  so far as necessary to carry out the provisions
                  of this Article.”
                       Opinion No. O-616 of this department holds that the
             Justice of the Peace's right to compensation.from the county
             for his trial fee under Article 1052, C.C.P., does not depend
             upon the collection or enforcement of the judgment but rather
             on the rendition of &   final judgment in so far as the Juris-
             diction of his court Is concerned.
                       Opinion No, O-1759 of this department, holds among
             other things, that the Justice of the Peace is entitled to
             his trial fee when the judgment he renders becomes final
             in so far as his court and jurisdiction are concerned, For
             example, If a defendant was tried and found guilty, filed
             motion for new trial within the statutory time and the court
             overruled the motion and the defendant filed an appeal bond
             within the statutory time in order to appeal his case from
             the justice to the county court, the Justice's judgment Is
             final in so far as his court is concerned and he is en-
             titled to his trial fee from the county, regardless of the
             outcome of the case in the county court or the court of
             criminal appeals.
                       Opinion No.O-1251 of this department holds that
             where judgment is deferred under Article 698, Vernon's
             Annotated Texas Code of Criminal Procedure, the justice
             of the peace would not be entitled to his trial fee from
             the county until the deferred judgment was entered and
             until thereafter the statutory time had elapsed to make
             it final In so far as the Jurisdiction of the justice was
             concerned.
                       Opinion No. O-1868 of this department holds that
             where one justice took a plea of guilty and entered judgment
             and another justice issued commitment and placed the defendant
             In jail, that the first justice was entitled to the trial fee.
             It was also held in this opinion that it was immaterial as to
               .-                            h




Honorable Denver E. Perkins, Page 6, (No. O-2683)




which justice collected all or a portion of the fine and costs.
          We enclose herewith copies of Opinions Nos. O-616,
O-1251, O-1759 and O-1868, which contain full discussion of
these questions.
          Under Article 698, the justice may defer judgment
in the manner outlined by the statute. However, he cannot
receive his trial fee from the county until the deferred judg-
ment Is entered and becomes final in so far as his jurisdlc-
tion Is concerned. If he enters judgment he has no authority
to extend credit to the defendant and permit him to go without
paying his fine and costs. When his judgment Is entered It Is
the duty of the arresting officer to collect the fine or
place the defe~ndantin jail, unless prevented by defendant's
appeal from said conviction in the manner outlined by law.
          However, the justice of the peace is entitled to
his trial fee from the county when his judgment becomes final
in so far as his jurisdiction is concerned. We are also of
the opinion that the unauthorized and illegal acts of the
justice in extending credit to donvlcted defendants would not
defeat his legal claim against the county for his trial fees
legally earned.
          It is the opinion of this department that your posl-
tlon in the matter is correct.
                                     Very truly yours
                             ATTORNEY GENERAL OF TEXAS

                             By s/ Wm.J. Fanning
                                   Wm. J. Fanning
                                   Assistant
WJF:AWzbt
APPROVED Sept.5,1940
         Gerald C. Mann
         Attorney General of Texas
Approved Opinion Committee
By BWB, Chairman
