         OFFlCE OF THE AT7ORNEY              GENERAL          OF ‘TEXAS
                                    AlJgClN




IIoimrableW, K. M&lain
Crlrnlml District Attorney
oeorgetown, %ixaa
Dear Sirs                        Opizion    !ioZ O-4091
                                 Ret    Justices of the Pease - con-
                                        8teblO8 - Fees of Office -
                                        Artlcile1071, C. C. P., Ir
                                        UQOO!l8titUtiOIlEdr

             Your   reqUe8t   for   opinion    ha8,   h8n     reOeitd         an&
Oareflllly   OOll8idt+l-#Bd by thi8    d8p8&tl8Rt.          we qUOt8    ipa
your request     a8 fOllOW88'

           “Will yOU p1ba8e .&VO me 8B OpiniOll011
      tde liability of the County on the following
      hypothstlaa& oaaet
            Wmra   a oomplaaintham been filed In the
     'Juktloe Court for the violation of Aitiolr I
     Seotlon 4.(b) of the Texas Liquor Control Aot;
     a warrant of arrest is ieeued~ the Constable
     .executsdthe warrant, and brou@t t&e Usfund-
     ant before the Justice of the Peace;    em examin-
     In& trial ia held, and the defendant i8 o~om-
     mltted to jail; the oomplaint I8 tranaferrad~
      to the County Court, and there dooketed$ the
      defendant I8 brought before the Judge on the
      cornplaIntand Information filed, end ie aaaeaa-
      Od a fine of #lOO.OO and Ooat, and on hit3plea
      of guilt, Is oonnrittedto the Jail, where he
      lc+ys the same .out at the rate of $3.00 per day.

           nQm!5TION; Is ihe county lawfully and
      legally liable foi one-half of the fee8 ohar ed
      by the Juetloe of the Peaoe and.Constable un8er
      Article 1071 end 1072 of the Code of CriEaIoal
      Procedure?
                                                                426


Honorable ?irK. MoClain, Page 2


          "The 'SWOnd qu&ation 1 vmuld like to
     have your aapartment answer ieg 18 Article
     lC71 Of th8 Cod8 of CrimiMl I'rooeduraa
     ViOlatiOn   Of   ally   0OIi6titUtfO~l   prOVi8iOIl8.

          "The third question Is; is tho County
     l.Isble'to the Justice of the Posoe end Con-
     atsble for the fee8 in the Ju8tIae Court,
    .where the aom;1aint i8 dismissed in the
     County Court, In other words, Ir live or
     six cases should be filed against one de-
     fendant and the defendant agreed to plead
     guilty in one oaae, and the State dI8mi88ed
     th8 other four 08898, 18 the County liable
     to the Juotion of the Pea08 and Constable
     for the four 088ea diemis8ed.R
           Article 1055, V. A. C. C. Y., reads 6s followa:
         "7!h8oounty shall not be liable to ths
    offloer and Witne8a having 008t8 in 8 mla-
    domanor case where defendant pay8 hla fine
    and aoata. The county-shell be liable for
    one-half of the fees of the officers of the
    Court, when the defendant fall8 to .payhis
    tine and lay8 hle fine out in the oounty
    j8ii OF diSQhar&a8 the 8a%e by meana of
    working ruoh Sine out on the aounty reed8
    or on any sounty projeot. And to pay suoh
    h5u Of 008t8, the COUiltyClerk Sba11 i88Ud
    his warrdnt'on the County Treasurer in fivor
    of such offiaw to be paid out of the Road
    and Bridge Yutu'or othir funds not other
    vise appropriated."
           Artlale 1072, V. A. C. C. P*, read8 as follower
         "sheriff8 and OOnstab1e8 88ZTIng pro-
    cess and attending any examining court In
    the examination of a misdemeanor CE8B ah311
    be entitled ta suoh.feee as are allowed by
    kiw for similar ssmioer  in the trial of
    such caae8, not to exosed three dollar8 In
    nny one ua8e, to be pald by the defendant
    in case of final aonviotIonrw
          Opinions Noa, O-1823, O-e877 and 045057 Of thla ds-
psrtaent -88ed on ycur flr~atquestion. Thee8 oplnions answer
 ROnOrable W. Xi MoC)din, FE@               S


your rirqt queatlon in the 8fffxmatIve. Rowever, In the88
opinion8 no question wao raised as to the oonstitutiona1ity
of Artlole 1071, V. A. C. C. P. Thi8 departmnt, however,
in 80M0rinC: the question ,inthe affIX?IZitIVe~WIth
                                                  m8peOt
to JUstiCo8 of the Pea00 eXpl'O8s1ystated in Opinion8 N08.
O-1823 and O-308?, that thlr degartmen$ did not pama on the
aonstltutlonality of Article 1071. We enaloee herewith
copiea of aaid opInIons for your information.
           Your 8eOOll6 QU88tiOlldil%Otiy rai8W the OOn8ti-
 tutlonallty of Artlole 1071, V. A. C. C. P., and we will
 prooecd to enewer thlm QUcl8tiOll.
             Artiole 1071, V. A. Ci O. Pa, reads a8 followsr
              *Justlosr of the peaoe who 8it a8 an
        ex8inInLngoourt in mlwhmeanor aa8e.s shall
        be entitled to the fmme few allowed b law
        to 8~0th justloes for simller 8emSaer    31n the
        tX?ialof 8Ueh Oa6.8, not t0 rSO&      three
        do-r8    In any on. oaw, to k
        defsndent in oaaa of final oan
          We peroeive from thb artlole that the jurrtioots
right to conpensatlon dspends upon the,fiaal oimviotlon of
the dsfendant. Xf the ustios bind&the defendant 0var to
the oourt having Jurle otion OS th&Qffeose and the de-
renda i8 finally eonv&otoU the &6tioe wlli rsoelve se-
mumretlon.   If the justibo does not bind the dafendant
over, he will not reeelve any ranunaretion.  D0es the ju8tioe
have any pecuniary interset in binding over the dr$eeldant7
We think so beoause this Is the ox&y way in which ha has
any   ohanee  to    reoelve   ramneration        under Article        1071;
V. A.    C. C. 2.

             A.rtIele5, Seotlon I.I.,
                                    of our Stats Ccn8tItktlon
provides:
             "No judge ehsll 8It in any oaae wherein
        he may be ln$erasted."
             7!h8 CaX86 Of XX PlU-tS        KOll@y,   1.0 8e     *.   (24)    7@3,
 held Article 1006, C, C. PI, 1925,   UIlOOLl8titUtiOtl81   &:8 bs-
 lng'fn violation of Artlole 5,.8eotlOn 11 of OUT Stat0         Con-
 atitutlon.  mi8  article all0wed   feei  to   justioea   OS  the
 peaoe'ln oases of conviction of dsfendante and allbved nom
.for aoquittale.
Eonorabls W. K. WClala,   As@   4


          rie quote frolpthe oaso of IX Darts Owens, 13
'2..8. (ed) 372, aa r0iim:
          "On Deosmbor 1, 1927, a judgment of
     oonviotlon~wae entered againat appellant
     In the county oourt or Daoo,qdochescounty
     r0r the 0rre580 or dieturbing ~~eilgi0~8 wor-
     ship, and a line of 425 WU# thsroln assessed,
     tof#her wfth .1!50.05 bolt&   05 the 224 day
     or DeOambsr, 1s27, a opplalas
                                 pro  rino was is-
     sued under suoh judgment and appsllant ar-
     rested. .Thoreartershe sued out a writ-or
     habeas corpus, and was remanded on a hearing
     to the custody or the eherigi 0r Daoo@oohes
     County, f'ro3i
                  whioh judment she has appealed.
           tiAppellantpresents the point that she
    is ille+Dxllyrestrained, in t&t she wan con-
    victed in the justios oourt of Xaowdooheo
    oounty on a trial had before a justipe or
    the peaoe who had taken tha oolaplaint&galnst
    ap,pellantand who wae dimqualitied by virtue.
    or his interest in tha matter ariain&   Prom
    the ract that hia oompansation depended solely
    upon a oo5riotion, and that rr0pna judgment
    fIndi!.&her guilty 15 suoh justice oourt she
    a>pealsd  to the oounty  ooUrt with the rttrult
    aroreaafd.
            vho agreed states@    0r racts appearing
    in tho reoord is somewhat ambiguous, but it
    ifirairly inrerabls thereiron that the arors-
    aaid prosecution in the county OoI&rtof Xaoog-
    doohes county, !&ix.,was but a oontinuation or
    the void proasedlng in jwtlce     Court, an& that
    appellant was .trlsdand oonvloted upon the
    complaint only brought up'from said justloe
    court. The record further shows that, oi the
    costs assasoed a&n&       appellant,'the amount
    of $:4 was justice    oourt costs, part of whioh
    wora claimed by $nd.tared for tha jwtlae ol'
    the paaoe beforc"whom relator wa8 orielnally
    t~riod.    It has been pointedly droided in the
    case or fx prmts &ally (Tex. cr. App.) 10
    S. '5:.(26) 728, that e'justioe of the peaae
    is dlssuallfied to try .criminaloases under
Honorable W. I[.Mcclaln, page 8


     the law as It erirrtodprior to said opinion           .
     which granted to him reorr.onlpis tha event
     or oonvIotlon. See, ala0 Ex parte Taylor
     Fest (No. 10995 Tss. Cr. App412   s. w. (2d)
     216, dm:ded Deoembar 19, 1928, not get orri-
     olally reported.
           "The ap:nllant having brought heraelf
     within the rule laid down In these oases
     makes It our duty to order hor disoharge for
     ths'reaaeonswhich hare already  been.iully
     rrtqted and whloh we do not rsol it neooaaary
     to hero repOat.'*
          In anBIer to your asoond QuostIon we ro6pootfully
edvleo that It ir ok opinion that Article 1071, v. A. c. 0. P.,
is In vlolatIoa or Article 8 seotioa 11 or our Stats constl-
tution and thererqre unoonetitutloaal.
          It follows that opinion6 Ao6. ~1823, 0&3?7 and
04057 or this dopnrtmeat should be overruled In ad rar aB
they alldrrr4e8 to justiieesor the pea00 under Artiole 1071,
V. A. C. C. P. We think oplnlom ??oa.O-1823 and 04?B77 are
                  as they apply to eonstables. This answers
oorz%ot in 80 ,faar
your rim question.
          In answer to your third ‘+mmtton It Is our opinion
that the oounty would not bsLllabl6 to the oonatable ror dIs-
misued OU~IBLI,
              ior In auoh iwatanoecrthe defendant would not
be aonvioted and would have no finer to lay outsor plDrkout
ma oontemplated by Article 1055;V. A. 0. 0. P., .and a8 poInt,ed
out above the justlaes of the peaoe wwld be entitled to no fee8
whatever under Artia3.e1071, V. A. 0. C. Pb
          Opinion No. O&OS7 Is hereby cverruled la Its entimtp.
O~lnIqn KOS. O-1823 and O-2877 or this department are overruled
In BO far aa they conflict wIththIr opinion.
                                    Yours   very   truly
