                                    NEY      GENERAL
                                      EXAS
,GROVERSELLERS            AUEVIXN     11.1'EXAS



                             August       7, 1945

   Hon. Sam B. .Ha)l
   County Attorney
   Hamlson County
   Marshall, Texas
   Attention: Mr+ Robert M. Sllee
                                        Opinion No. O-6661
   Dear Sir:                            Re: In a peace bond proceed-
                                            ing, where the accused
                                            haa been placed under
                                            bond,,1s the Justice-of ,-
                                            Peace, as magistrate,en-
                                            titled to fees as in crim-
                                            inal bases? And/related
                                            questiona.
        Ue acknowledge receipt  of your letter in which you
   request the oplnlbn of ‘thisdepatment on the following ques-
   tlonst
         “(1) In a peace bond proceeding, before a
              magistrate, under Arts. 79 and 80,
              c. c. P., where the accusea has been
              placed under a bond after a hearing,
              makes the bond required by the court,
              and pays the costs of such proceeding
              to the County, is the Justice ol the
              Peace.entltledto fees as any other
              criminal case, or la he &titled to
              fees as in civil cases.7
         “(2)    In a similar case a8 Number 1 above,
                 except where the accused has failed
                 to make bond and pay costs, and Is
                 placed In jail, Is the Justice of
                 the Peaae entitled to any fees?
         “(3)    In the fact situation of Number 2 above,
                 are the other officers,entitledto half
                 cost If he serves the time In jail?
Hon.   Sam B. Hall, page 2 (O-6661)




       "(4) In the event a person legally placed
            under a peace bond after a hearing
            before a magistrate, and he falls to
            make such bond, does the Justice of
            the Peace have authority to revoke
            said order and release the defendant;
            and if not, is there any remedy where-
            by he may obtain his release without
            making the bond?"
         By virtue of Article 33, V. A. C. C. P., a Justice of
the Peace is ex-officioa magistrate. When the Justice of the
Peace sits as a magistrate,his powers and jurisdictionare
tHaae SiM fly of a magistrate and exclusive of hi   ffi
Justice of the Peace.   Brown v. State (Ct. Crlm.'Agp. &1$;55
Crlm. Rep. 572, 118 S. W. 139,143.
        A peace bond proceeding ls before a magistrate and
the proceeding 1s "generallyregarded in the nature of criminal
proceedings".Ex parte Garner (Ct. Crlm. App. 1922),246 S. W.
371, 372, citing cases in other states holding such proceedings
criminal. In sustenance of this opinion we find provision for
such proceedings In our Code of Criminal Procedure and reference
therein to the "charge" as against the 'accused'.
        We must look therefore to the Code of Criminal Proced-
ure for provision as to the amount of fees in such case for the
magistrate.
        Articles 1052 and 1074, V. A. C. S., provide, In part,
as follows:
        “Art. I.052. Three Dollars shall be patd by the
   county to the County Judge, or Judge of the Court at
   Law, and Two Dollars and fifty cents shall be paid by
   the county to the Justice of the Peace, for each crim-
   inal action tried and finally disposed of before him.
   Provided, however, that in all counties having a popu-
   lation of 20,000 or less, the Justice of the Peace
   shall receive a trial fee of Three Dollars. Such Judge
   or Justice shall present to the Commissioners'Court
   of his county at a regular term therof, a xritten ac-
   count specifyingeach criminal action in which he
   claims such fee, certified by such Judge or Justice tt
   be correct, and filed with the County Clerk. . . .
-      ‘




    Hon. Sam B. 'Hall;Page ? (O-6661)




          "Art. 107$., In each case of conviction ln,a
       Co t Cou t 0 a,County Court at Law whether b
       a ynU&'or Xy'a Eour,t there shall be tkxed agains3
       the defendant or'against all'‘de,fendants,
                                                when sev-.
       era1 are held jointly, a ,trialfee of Five Dollars,
       the same,to collected and paid over In the same
       manner asln the,case of a jury fee, and In the
       Justioe Court the trral fee shall be the sum of
       Four Dollars."'

          It is evident that these Artl.clespr,ovidefees for a
    Justice,of the Peace as a Justice of 'thePeace and not in any
    other character or office.
           Taking another view, Article 1052, supra, provides
    fees only foreach"'drlmlna1 action" tried and finally dis-
    posed of before the Justice of the Peace. Article 24; V. A. P.
    C   defihes "criminal action" as "the whole or any part of the
    p&sedure which the law provides for brdngtng offendey@c$tz
    justice". Art. 90, V. A. C. C. P. , provides that if It appears
    to the magistrate that defendant has committed a "criminal
    offense" the same proceedings shall be had as In other cases
    where parties are charged with crime.
            We think It clear that there cannot be an "offender"
    until there isan offen'se. If an offense has been commltted,
     the proceedings then shall be had as In other cases where par-
    tiesare charged with crime. We therefore conclude that a
    ~requlre~metit
                 o,fpea&e b6hd by,-8niagi.str~a~te
                                               Is not a "criminal
     action" as contemplatedin Article .lO52,supra. ,It is our
    "further conclusion that a requirement of peace bond is not a
     "conviction"as contemplatedby the Legislature in Article
     1074, aupra, for the reason that there cannot be a "conviction"
     unleas there has been an offense.
           We think It significantthat specific provision Is
    made defining fees for a Justice of the Peace when sitting as
    an examining court (Art. 1020, V. A. C. C. P. ), wherein the
    Justice sits as a magistrate and not as a Justice of the Peace.
    Brown v.,State, supra, p. 142.
Hon.    Sam B. Hall, page 4 '(O-6661




         ‘In answer,to your first question, It is our opinion
that the Legislature has Sailed to provide compensationor fees
for a,Justlce of the Peace slttlng as a magistrate in a peace
bond proceeding,'forit 1s well establlshed that “to entitle
an officer to recelve,Seesor’comml.sslons,    the receipt thereof
must have been provided and the amount fixed by law. 34 Tex.
Juris, page 522, with numerous cases cited. This principle is
concrete In foundation for a See ls’essentlallya creature of
statute, and we cannot improvise analogy or by lmpllcatlon
 McCal1s.v. City of Rockdale, et al, Corn.App. 1922,246 S. W.
 5.4,655),   for In 80 doing we would be In usurpation of a Power
conferred upon the Legislature by Article 3, Section 44 of our
Texas    ConStitUtion.


       Our statutes having Sailed to fix the amount of Sees,
“until the Legislature does so, neither the courts nor interested
party, nor any officer of the government can Six it.” State of
Texas v. Moore (Sup. Ct. 1.882),57 Tex. 307,321.
       This being our answer to your first question, it
follows that your second question Is answered in the negative
by reason of like failure of provlsion for fees.
       With reference to your third question, since in a
peace bond proceeding there Is no provlslon~for “fine” nor
is a peace bond,requirement a “misdemeanor”,Article 1055,
V. A. C. C. P. , ,whichprovides for half Sees to other officers
and to which you refer, Is In our opinion InapplIcabLe. Your
third question ia accordingly answered in the negative.
       Article 85, v. A. c. c. P. ,provldes that if the defend-
ant falls to give bond “he shall be committed to jail for one year
from the date of the first s     requiring such bond.” (Rmphasls
ours).
       As herelnbeiore stated, a Justice of the Peace sits
as a magistrate and not as a Justice of the Peace In a peace
bond proceeding. We know of no statute authorizing a magistrate
ln’a peace bond proceeding to revoke hls order once It Is made.
The statute in wording commands that the defendant be committed.
There Is no discretion resting In the magistrate.
      Therefore, in answer to your fourth question, It 1s our
opinion that the only remedy whereby the defendant may obtain his
. .      L




 Hon. Sam B. Hall, page 5 (0-6661)




  release is by writ of-habeas COF US'. Ex parte Wilkinson
   ct. Grim. App.                 E 26 427; Ex parte SalamY
   Ct. Crlm. App.                 (2dj 487;

                                      Yours very truly,
                                   ATTORNEYGENERAL OFTEXAS


                                   BY   s/Elton M. Hyder, Jr.
                                          Elton',M.-Hyder,Jr.
                                                  Assistant

  EMR?rt:aa
      APPROVED AUGUST 7, 1945
      s/Carlos Ashley
      FIRST ASSISTANT
      ATTORNEY GENERAL

      Approved Opinion Committee By s/BWB Chairman
