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                    OFFICE     OF THE ATTORNEY GENERAL        OF TEXAS
                                         AUSTIN




Sonotable J. P. Holubec                                       .
County Auditor, Luvacs County
iiallettsville,                Texas

Dear dir:




                        Your    letter   of
of this depnrtment on the
as Sollows :




                                                     t es they find
                                                   a draft to be la-
                                                   surer   in favor   0r
                                                      the amount so
                                                     ommlssioners Court
                                                ouht or trial   fees in
                                                 whloh an ecquittal     is
                                                oi Texas ‘was repreeen-
                                     rial of said aause by the County
                                      his assistant,    Criminal District
                                     his assistant,    and the oertlfl-
                                   d Attorney 1s attached to aaid
                                   tlfylng    to the fast that said
                      oause was tried,      snd the State of Texas was
                      represented    and that in his judgment there
                      was nuffioient     evidence in said oause to
                      dernahd a trial of &mm.’
                         'A8 gou will
                                 note, ths etatute       la allent    about
            a       oonstable*e  tee8
                                 and I would like to know         from your
       depertaent whether id four           opinion the oonstable       be
       entitled  to hfe fees in aoqulttal            and also whether
       or not the Yustloe and the Constable would be entitled
       to their fee8 in orlminal oase in Justloe               Court where
       the oase wa8 tried        twioe and both trials        resulted    in
                 ur     and   final11    the  ease   dismissed
.m41.TO???Ck:f14rd.. lc.~*l”TUCUflLo., ,a” “HCc***CCIO”Lm         br
                                                        .” T”CLI1O”M. nrU--.* -- -,-=- --
                                                                       .

Sar.wr~bla   J .    Y.   riolubec,      pigs   2
                                                                             &I1




       County :+t.t3rney.            * * *II
             ,rticle   1052, Vernon’6 Annotated Code of Cr:ainsl
Procedure,   does not pertais to the fees or compensation of
sheriffs   or cocstsbles.    This statute  pertaim  only to the com-
>enss tion 0: Gurlges and Justices    of the Peace.

             iirticle 1065, Vernon’s nnnotated Code of Criminal
Frocedure, allows certain fees to the sheriff     or other peace
officer  Performing the same services    in misdemeanor cs~ses, to be
tAxed 2gtiiu.A the defe:.dant on oonviotion.
             .irticle   1087, Jernon’a -nnotated    Code of Crlmlnsl
Prixedure  , sroviiies,    in effect, that constables,   nmrshals or
other peace officers      who execute process and perform services
for justices     in &ulna1 actions,    shsll receive the sane fees
allowed to sheriffs      for ihe 8-e   services.
              it will be noted, after considering    the foregoing
gtatutes,    that  a constable  in misdemeanor csses 1s entitled    to
the fees authorized by Article       1065, supra, on conviction   of the
defendant and th& such ices are to be taxed against the defen-
dant.   Therefore,    you are respectfully   advised thst a oonstsble
:~a not entitled    to his fees in mlsdezesnor c%ses where the de-
fendant 1S acqulLted.
            ke now consider your second question with reference
to the com;~ensotion of the jutitice      of the peace and the constable
1% % mlsdeme%nor c%se in the justloe        court where the o%se was tried
twice arid each trisl   resulted in % mistrial     and wee finally  dis-
@ased uson motion of the county attorney.          In view of what hss
heretofore  been said with reference to the Sees of the oonstable,
It is olesr that the oonstable would not be entltled         to any fee
where the case was dismissed,       although suah c3.88 had been tried
twice and resulted    ln % tietrial     esoh time prior to the dismiss%1
or suoh ease.
            In then csse of Brackenridge v. State,   11 9. b’. 630,
the oourt, in passing upon a slmilsr question,     pertaining   ,to the
compensation of a oounty judge, used the following      language:

               -The ease must have been tried and finally
       disposed of before him, he tiust both try and
       finally   dispose of it, sueh Is the plain l%ngu%ge
       of the atutute.    The trial 1s %n exsmlmtlon    be-
       fore a oompetent trlbun%.l, aooordlng   to the laws
       of the land, of th% faotr put in losue in a oese,
       ror the purpose of deter;ainlng owl-,!ssues.
    s                                                                     s
                                                                               ’   442

Ronorable    J. B. Kolubec,   gage 3




               “A dismissal   of the c&e is    to send it
        out o-f the court without 6 trial     upon any issue
        involved la it.     It Is the final   disposition  or
        that partloul&r c%se, but is not      a trial of It.”

             In the case of Richardson v. State, 4 S. g. (2d) 79,
it w%s held in effect    that when the ease was disposed of by motion
to quash, the County Judge was entitled      to e tee under .irticle
1052, Vernon’s raotated      Code of Criminal Procedure, paysble by
the oounty.    be do not think this o%se estsblishea    a different
rule  as laid down la the o%se or Brackenridge     v. State, supra,.  \
for there is % distinction     in a motion to queah snd % motion to
dismiss.
             The plala and spectfio  knguqe   of krtfcle  1052,
aupre, is that the juage or justice    of the peace must both try
and finally   dispose of the oaae before him to be entitled   to the
fee ?rovidad therein.    This department hsa repeatedly   held thst
the juatloe   of the peaoe la not entitled  fo the fees provided by
Article   1052, aupra, when the c%se is diamlssed uRon motion of
the state*8   attorney.
            You are re6pectfully    advised that it 1s the opinion
of .thla department th%t the juatloa of the peace la not entitled
to the fees provided by Artiole     1052, Coda of Criminal F’rooedura,
although there hea been two trials      of such case reaultlng   ln a
mlatrlal  but was l%ter dismissed     upon motion o? the county at-
torney.   The case was tried twice by the justice     of the peace
but auoh trials   did not finally   dispose of the a%88 before him
a06 was later disposed of upon motion of the county attorney to
dlamlas.   Therefore,  it la our opinion that tha justice      of tha
paaca would not be entitled     to the compensation allowed by Artl-
ole 1052, aupra, ln such case.
                                                      Yours    vary    truly

                                                ATTORREYGRRERALOF TEXAS



                                                BY
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                                                              Ardell    Wllllama
                                                                       Aaeistant
