         TEEA~~~ORNEY               GENERAL
                     OFTEXAS




                      .
HMorable T; 'GilbertAdams
C%init~A$tdrneg
J&isp&'County
Jasper,
  -.,~ Texas
Dear Sir:                      OplniofiNon;o-52=-     “‘~
                               Re: Authdrity.df a.Ju‘etibebf3hV
                                    Pe&c'Ei
                                          to colIect“a‘fee-.id~'~he
                                    issuance
                                      ..,     of a search *. .~
                                                             warrant.
                                                                __._ ~.
           Your request for ‘dpinionhas beetirec&iVed~ati~~bai+d
-fillyconsideredby this department. We quote from ycur request
as follows:                                      _^
          "I would,thank you Fo furnish Biewith'an
   opinion as to what method and manner a Justice
   of the Ptiace"
                should.'fbllowintiollectlngfees f‘dr
   IsSuing a Search Warrant t5 Peace"Offlcersin lii-
   vestiga,tionof Liquor violationsand other violaL
   tions which do not borneund.@rthe jurisdictionbf
   the Justice Court, and in cases-~thatdo not come
   under the-jurisdictionupon trlCil,"ofthe Justice
   of the Peace; when the Bearch warrant Is used by
   the officer and no violation sufflc'ientto pro-
   secute, is found on the premises searched..
          "Undbr Article 1066, Code bf Criminal Pro-
   cedure, Texas Statutes, it reads as follows:

          "'Justicesof the'peac.eshall receive the
   following fees in criminal actions tried before
   them. to be collected of the defendant in case of
   his condytion:
             . For each warrant, Seventy-fivecents.
   . . . ..f   . a .o 1
          "I,'ponot find any provision in the Statute
    whereby a Justice of thb Fe&e is..pr&ected
                                    __    .-    in
    hlKfee .whenhe issues a S‘earchWarrant for the
    Peace Officer an&the violation, if one is found
    to'exlst, comes under the jurisdictionof the
    District Coiirtor the County Court, OP where it
    is found that there is not bufflclent vlolatioii
    to justify prosecution. I am referring especially
 .,    .,                ,.,

Honorable T. Gilbert Adams, page 2          o-5286

                                      :       ,,

      to violations of the Liquor Law and warrants is-
      sued by the Justice of the Peace for State Liquor
      Inspectors in their efforts to curb the violation
      of the Liquor law8 in a dry area.
           ,"IWould assume that if there Wa8'.nOtsuffi-
    tilefit
          @vld‘EhCefbuduna
                         to ijros&de.a violationupon
    which a Search wartiknth&s iSSUd,    there'wouldbe
    no f&e payable to'the Justide of the"Peace,but in
    th& event ther'&.'is'~sufficibntevidence'.found
                                                  by .'
    reason"of the warrant, there Is some way to protec,t
    the Jtisticefor his services in the issuing of
    the warrant."                               .
   -,'     Article 1066, Revised Code of CVimlnal"-Proc,edure
                                                            of
Texas ,1925,referred,to~ifi your lette?,'wasrepelled in 1929"by
H.B. 64 of the 41st Legislature Bf Texas, Firat Called Session.
  _.       There is no Texas statute allowIng ju8tYkes'ofthe
peace fees for issuing search warrants of any character.
                                                           ."
           We quote from 34 Texas Jurisprudence,page 511, as
fOllOW8:
              "As hereinbeforestated, the compensationof
      $ublic officers is fix& by the ConstitutionSir
      statutes. An bfficer may not claim or reach aiiy
      %onSy without a law‘.authorizing him to do so, and
      clearly,,fixing the gmount to which he Is entitled.
       . . . .
         - In"vi,ewof the above it is our opinion that"justices
of-'thepeace are not i3ntftledto any fees for Issuing any
character of search warrants.
           We enclose herewith for your informationa copy of
opinion'No.O-4091 of this departmentwhich holds Article 1071,
Vernon's Annotated Texas Code of Criminal Procedure (an article
allowing justices of"the peticeexamining tr'ialfees in misde-
meanor cases to be tcixedagainst the defendant on conviction)
to be unconstitutional.
Honorable T. Gilbert Adams, page 3        o-5286



                             Very truly yours
                         ATTORNEY GENERAL OF TEXAS


                             By s/Wm. J. F&nning
                                  Wm. J,“Fannlng
                                  Assistant
WJF:mp:wc
Encl.

APPRm    MAY 18, 1943
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS

Approved Opinion Committee By s/BIsBChai'rman
