                           1‘HE   ATI-OISNEY GENERAL
                                     OF TEXAS
         GSRAL.DC.MANR              AUSVIZU   II.TgxAs
a
    *--mm7     -.a*
             Hon.iwable  Joe J. 'Fisher
             DistriotAttofney
             San Augustine,   Texaa

             Dear   Sirr                  Opinion No. 0491
                                          Rei Ii~the Justiceof.thePeace of
                                          RswttinCountyentitledtothe stat-
                                          utcry fee mentionedin Article 1052,
                                          @de of CriminalProcedure,where the
                                          oriminalaction is dismissed.onmotion
                                          of the 6tate'sattorney)

                  Your requestfor a8 opinionon the,abovestatedquestionha8
    been reoeived'bythii bfWo$.       .

                       Article1052, Code cf CriminalProcedure,reado as follanse

             '"Three'dollars rhallbe paid by the ccunty ta the county judge,or
             judge of the court at law, end two dollarsand fifty cents she31be
             paid bythe oounfq to the justiceof the peace, for each oriminal
             actiontried and finallydispciedof befcre h5xb Presided,however,
             that in all countleahavinga populationof 20,000 or less,,the
             justiceof the peaoe shallreceive a trial fee of three dollars.
             Such judge or jurtioe&all presentte the Coxvairrionsrs'   Court
             of his countyat a regularterm thereof,a writtenlooouatspeoi-
             fylng each criminalaction in which he claims such fee, oertified
             by oertaiajydge or justiceto be acrmot and filed withthe
              countyclerk. The C!cmmOssioners'-Court &all approvesuch ao-
              oount for such amounta8 they find to be correct,and order a
             draft to be issuedupon the countytreasuryin favor of suoh
              judge or justicefor the maount so approved. Providedthe Com-
             missioners’Court shall not pay oqy amount or trial fee in any
              case tried and in which an aoquittalis had unlerrthe State of
             Texas nes representedia the trial of said cause bythe oountJl
             attorneycr his arrlntant,orimiaaldistrictattorneyor his
             assistant,and the oertifioatoof said atterneyir attachedto
              said aooountoertwig to the faot that raid causewanstried,
              md the State of Texas was reprerented,and that In hie judg-
             ment therewas suffiolentevidenoein said cause tc demanda
             trial of the acme."

                    In the cadgeof Braokenridge
                                              v. State, 11 S.W. 6SG, the
    oourt,   in passingupon a similarquesticm,used the followinglanguages
                       "The oaaemust have been tried md finallydispcsedof
                       beforehim, he must bth try and finallydisposecf it,
                       suoh ia the plain languageof the statute. The trial
                       is an examination before a competenttriMcal, aooord-
                       ing to the laws ef the land, of the facts put in issue
Hem. Joe J. Fisher,page 2 (O-391)



              in a case, for tho purpcseof determiningruoh
              iarueo.

              *A dilPaisra1
                          of the case is to send it out of
              the oourtwithout a trial upon any issue involv-
              od in it. It ir the final dirporitionof that
              particularcase, lut it is not a trial of It."

               In the oaso; Riohardsonv. State,4 8.11.(2) 79, holdn in
offoctthat when the case was disposedof bgmotien to quash,the County
Judgo~8 ontitlodto a foo odor Article 1062, Cods of CriminalProooduro,
payableby the county, m do not think the o a 8olatabliohoda different
rule as laid down in the ease of Braokonridgev. State, rupra,for there
is a diatinotionin amotionto quash and a motion tc dismiss.

               The plain and spooifiolanguageof Artiole 1052, SUPZ-II,is
that the judgo and justiceof the peacemust both try and finallydispom
of the case before him to be entitledto the ~fooprovidedthorsin.

               This doprbnont has ropoatodlyhold that a justiceof tho
poaoo is not ontitlodto tho foes providedby Article 1032, supra,when
tho caoo io dismissedupon motion of the &ate's attorney,

               You are rospoctfullyadvisedand it is the opinionof this
departmentthat the justiceof tho peaoo is not entitledto 8uch foe as
prwrdod njrArticle1052, Dpdo of CriminalProooduro,supra,whore thore
lo 810.'
       trial of the case boforo him but is dismissedupon the motion of
conntyattcrnoyor his assistant,the criminaldistrictlttornoyor his
assistant,or any otherlttornoyrepresenting    the otate.

              Trustingthat the foregoingansworaycur inquiru,wo remain

                                           Yoursvory truly

                                        ATTCRNEYCEI?W4LOPTEXAS


                                        By /e/ArdollUllliams
                                               Ardolltill&i
                                                     AssSatmt
