Hon. George R. Sheppard
Comptroller' of Public Accounts
Austin, Texas

Uear Sir:                Opinion No. O-1713
                         Re: Would the county attorney and
                              justice of the peace under the
                              facts set forth be entitled to
                              regular examining trial fees in
                              the four cases?

       Your request for an opinion on the above stated question
has been received by this Department.

        Your letter reads in part as follows:

       'Adefendant is charged with four burglaries
   in Wise County, and when complaints were flied
   in the Justice Court it was found that the de-
   fendant was in jail at Fort Worth. The defen-
   dant's attorney appeared before the Justice
   Court at Decatur and arranged a bond. The de-
   fendant was not present and no Examining Trial
   was held. The attorney, however, took state-
   ment from the officer regarding each case.
   Would the County Attorney and Justice of the
   Peace be entitled to regular Examining Trial
   Fees in these four cases?"

        Article 1020, Code of Criminal Procedure, reads as fol-
lows:

       "In each case where a County Judge or a
    Justice of the Peace shall sit as an examining
    court in a felony case, they shall be entitled
    to the same fees allowed by law for similar
    services in misdemeanor cases to Justices of
    the Peace, and ten cents for each one hundred
    words for writing down the testimony, to be
    paid by the State, not to exceed Three and, Ro/
    100 ($3 -00) Dollars, for all his services in
    any one case.

        "Sheriffs and Constables serving process and
Ron. George H. Sheppard, page 2         O-1713


   attending any examining court in the examina-
    tion of any felony case, shall be entitled to
    such fees as are fixed by law for similar ser-
    vices in misdemeanor case8 in County Court to
   be paid b the State not to 8XCeed Four and
   No/100 ($g.OO) Dolla&   in any one case and
   mileage~actually and necessarily traveled in
   gdng to the place of arrest, and for conveying
   the prisoner or prisonersto   jail as provided
    in Articles 1029 and 1030, Code of Criminal
   Procedure, as the facts may be, but no mileage
   Whatever shall be paid for summoning or at-
   taching witnesses in the county where case is
   pending. Provided no sheriff or constable shall
   receive from the State any additional mileage
   for any subsequent arrest of a defendant in the
    same case, or in any other case in an examining
   court or in any district court based upon the same
   charge or upon the same criminal act, or growing
    out of the same criminal transaction, whether the
   arrest is made with'or without a warrant, or be-
   fore or after indictment, and in no event shall
   he be allowed to duplicate his fees for mileage
    for making arrests, with or without warrant, or
   when two or more warrants of arrest or capiases
   are served or could have been served on the same
   defendant on any one day.

       %istrict and County Attorneys, for attend-
    ing and prosecuting any felony case before an
    examining court, shall be entitled to a fee of
    Five and no/100  ($5.00) Dollars, to be paid by
    the State for each case prosecuted by.him be-
    fore such court. Such fee shall not be paid ex-
    cept in cases where the testimony of the material
    witnesses to the transaction shall be reduced to
    writing, subscribed and sworn to by said witnes-
    S8S; and provided further that such written test-
    imony of all material witnesses to the transac-
    tion shall~be delivered to the District Clerk
    under ~seal, who shall deliver the same to the
    foreman of the grand jury and~take his receipt
    therefor. Such foreman shall; on or before the
    adjournment of the grand jury, return the same
    to the clerk who shall receipt him and shall
    keep said testimony in the files of his Office
    for a period of five years.

       "The fees mentioned in this Article shall be-
    come due and payable only after the indictment
Hon. George   H. Sheppard, page 3       O-1713


    of the defendant for an offense based upon
    or growing out of the charge filed in the ex-
    amining court and upon an itemized account,
    sworn to by the officers claiming such fees,,
    approved by the Judge of the District Cburt,
    and said County or District Attorney shall pre-
    sent to the District Judge the testimony tran-
    scribed in the examining trial, who shall ex-
    amine the same and certify that he has done so
    and that he finds the testimony of one or more
    witnesses to be material; and provided further
    that a certificate from the District Clerk,
    showing that the written testimony of the ma-
    terial witnesses has been filed with said Dis-
    trict Clerk, in accordance with the preceding
    paragraph, shall be attached to said account
    before such District or County Attorney shall
    be entitled to a fee in any felony case for
    services performed before an examining court.

       "Only one fee shall be allowed to any of-
    ficer mentioned herein for services rendered
    in an examining trial, though more than one
    defendant is joined in the complaint, or a
    severance is had. When defendants are proceed-
    ed against separately, who could have been pro-
    ceeded against jointly, but one fee shall b-e
    allowed in all cases that could haV8 been so
    joined. No more than one fee shall be allowed
    to any officer where more than one case is filed
    against the same defendant for offenses growing
    out of the same criminal act or transaction.
    The account of the officer and the approval of
    the District Judge must affirmatively show that
    the provisions of this Article have been com-
    plied with."

       In an opin,ion written by Hon. Bruce W. Bryant, Assistant
Attorney General, September 9, 1932, this department held:
       I,.... ....that a Justice of the Peace is en-
    titled to his fees where the accused, waives an
    examining trial in any bailable case and con-
    sents for the magistrate to require bail of
    him. In such cases the Justice of the Peace,
    sitting as a magistrate, enters his order bind-
    ing the defendant over to th8 District Court to
    await the action of the grand jury in his case,
    and in such an instance the case has been tried
    and finally disposed of within the meaning of
Han, George H. Sheppard, page 4         o-1713


    Article 1052. In such a case every thing has
    been done that could have been done upon a full hear-
    ing and trial. The defendant has admitted, by
    waiving his right to an examining trial, that the
    State has testimony ready to introduce upon the
    trial of the case which would justify the magis-
    trate in bind%ng the defendant over to the Dis-
    trict Court.

       "You are therefore advised that in all felony
   cases filed before a Justice of the Peace, sit-
   ting as a magistrate, where no examining trial
   has been held or where the defendant does not
   waive his right to an examining trial, that the
   Justice of th8 Peace is not entitled to any fee
   for his services so rendered."

       Hon. Homer C. DeWolfe, Assistant Attorney General, in a
letter opinion to Hon. John 0. Harris, County Attorney, Coleman,
Texas, dated February 17, 1933, in passing upon a similar ques-
tion reached the same conclusion as above set forth in the
opinion written by Judge Bryant.

      We quote from the case of McCalla vs. City of Richdale,
246 SW 654, as follows:
      "The courts of this State have adopted the
   rule construing strictly those statutes pre-
   scribing fees for public officers and against
   permitting such fees by implication. No officer
   is permitted to collect fees or commissions un-
   less the same are provided for and the amount
   thereof declared by law. This is true, notwith-
   standing such officer may be required by law to
   perform specific services for which no compen-
   sation is provided. The obligation to perform
   such services is imposed as an incident to the
   office and the officer is deemed to have en-
   gaged to perform them without compensation by
   his acceptance thereof."

       Articles 245 and 299 of the Code of Criminal Procedure
read as follows:

       "Art. 2450 When the accused has been brought
    before a magistrate,  that officer shall proceed
    to examine into the truth of the accusatLon made,
    allowing the accused, however, sufficient time
    to procure counsel."
Hon. George H. Sheppard, page 5           O-1713



       "Art. 299. The accused may waive an examin-
    ing trial in any bailable case and consent for
    the magistrate to require bail of him; but the
    prosecutor or magistrate may examine the witnesses
    for the State as in other cases. The magistrate
    shall send to the proper clerk with the other
    proceedings in the case a list of the witnesses
    for the State, their residence and whether ex-
    amined."

       'In the case& Brown vs. State, 118 S.W. 135, a,mong other
things,.the court held that a magistrate cannot sit as an exam-
ining court or conduct an examining trial until he has the
party under arrest and before him.

       Under the facts stated in your inquiry, the accused was
neither present nor before the magistrate when the county at-
torney took the statements from the officer regarding each case;
nor did the defendant waive an examining trial; as he was not
present, there could not have been an examining trial or a
waiver of the same by him under the opinion of the court in the
case of Brown vs. State, supra.

       In view of the foregoing aUthOriti8s and under the facts
set forth in your letter, you ar,e respectfully advised that it
is the opinion of this Department that neither the county attor-
ney nor the justlce of the peace would be entitled,to any ex-
aming trial fees in the cases mentioned in your inquiry.

         Trusting that the foregoing answers your question, we
remain
                                Yours very truly

                             ATTOREEY GENERAL OF TEXAS

                                By s/Ardell Williams
                                     Ard,ell~~Williams
                                     Assistant
AW:AW:wc


APPROVED DEC 7, 1939
s/Geral C. Mann
Attorney General of Texas

Approved Opinion Committee By s/BWB Chairman
