                     November 2, 1972

Honorable John R. MacLean            Opinion No. M-1258
County Attorney
Johnson County Courthouse            Re:   Whether procedure in
Cleburne, Texas 76031                      the Justice Courts for
                                           traffic violations are
                                           constitutional where
                                           the law fixes fees for
                                           the justices only in
                                           the event of convic-
Dear Mr. MacLean:                          tion?
     You have requested an opinion as to whether the procedure
in the Justice Courts of Johnson County, Texas, for traffic
violations whereby justices of the peace are compensated only
in the event of a conviction is constitutional.
     You stated in your request that the system of compensation
in Johnson County allows $4.00 to.be paid to a justice of the
peace for each conviction, but allows no compensation if the
case is dismissed or an acquital occurs. Such a system of com-
pensation that allows payment only upon a conviction is uncon-
stitutional in the light of Tumey v. State of Ohio, 273 U.S.
510, 47 S.Ct. 437 (1927) which held:
          "From this review we conclude that a system
     by which an inferior judge is paid for his service
     only when he convicts the defendant has not become
     so imbeded by custom in the general picture, either
     at common law or in this country, that it can be
     regarded as due process of law; unless the cost us-
     ually imposed are so small that they may be properly
     ignored as within the maxim de minimin non curnat
     lex."
     We presume that a significant part of the income of the
justices of the peace in Johnson County come from the $4.00 a




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Bonorable John R. MacLean, page 2         (M-1258)




person conviction fee which would place the practice squarely
under Tumey, supra. That case, went on to say:
          "Every procedure which would offer a
     possible temptation to the average man as a
     judge to forget the burden of proof required
     to convict the defendant, or which might lead
     him not to hold the balance nice, clear, and
     true between the state and the accused denies
     the latter due process of law.*
     This office, in opinion No. C-497 (1965), held that it is
within the sole discretion of the Commissioner's Court to de-
termine whether the justices of the peace should be compensated
on a fee or salary basis. However, if the fee system is employ-
ed, it is necessary for it to comply with Tumey v. State of Ohio,
supra, and its accompanying cases to be lawful. As was stated
in Hulett v. Julian, 250 F.Supp. 208 (N.D. Ala. 1966) in apply-
ing the rule of Tumey, supra:
    I . . . it certainly violates the Fourteenth
    Amendment and deprives a defendant in a
    criminal case of due process of law to sub-
    ject his liberty or property to the judgments
    of a court, the judge of which has a direct,
    personal, substantial pecuniary interest in
    reaching a conclusion against him in his
    caseon
     Bennett v. Cottingham, 290 F.Supp. 759 (N.D. Ala. 19691,
aff'd per curiam, 393 U.S. 317, 89 S.Ct. 554 (1969) directly
applied the doctrine of Tume   supra, and Hulett, supra, in
holding that justices of-I+'
                         t e peace receivingfees in traffic
offense cases only in the event of a conviction were acting un-
constitutionally in violation of the due process law of the
Fourteenth Amendment.
     In closing, it is observed that this question could become
moot in the future if the voters adopt the proposed amendment
of Article XVI of Section 61 of the Texas Constitution. That
proposal, which will be voted on in November of this year, makes
it mandatory that counties compensate justices of the peace on
a salary basis.




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Honorable John R. MacLean, page 3        (M-1258)



                        SUMMARY
               It is unconstitutionalto compensate a
          justice of the peace only when he convicts
          the defendant.




Prepared by Taaewell Speer
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Roger Tyler
James Broadhurst
John H. Richards
Sam Jones
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFREDWALRER
ExecutiveAssistant
NOLA WHITE
First Assistant




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