                                                                                     R-600




                                     AUWTIN    11. -
PRICE  DANIEL
ATTORNEYGENERAL
                                              July 25, 1947

           Hon. Looneg E. Lindsey                       Opinion       NO.   v-312
           County Attorney
           Upshur
           -.-     County
                    -                                   Re:      Obligation of a
           Gllmer, Texas                                         Juatlce of the
                                                                 Peace to accept
                                                                 or collect and to
                                                                 account for f he3
                                                                 and costa in his
                                                                 court.
           Dear Sir:
                          ‘You have requested an opinion from this                    De-
           partment      concerning the following  questions:
                        “1.  Are justices    of the peace E-
                  qulred to collect   finea,   Costa), etc., In
                  their oourts and if so, what is their
                  compensation?
                        “2.  Are justices   of the peace
                  authorized  to colleat  fines,  coats, etc.
                  assessed in their COWtS, and if so,
                  what is their coiapensation?
                          “3. Does the record keeping and
                  accounting for monies collected     aa costs
                  and finea by justlaes     of the peace under
                  Article    1619, v.A.c.s.  1925, constitute
                  a part of the official     duties of their
                  offices    and If 80, what Is their oompen-
                  B.StiOll?

                              ‘!4.   Are justices      of’ the    peace     rie-
                  %MdE:;                       :?;!A    ;~si
                  proper oases   o,n pleas of guilty and tend-
                  ered to ,such justices    either by the defend-
                  ant or liy an officer    collecting     3ame if
                  the justice   remands the defendant to the
                  officer   for the satisfaction      of same?"
                          We quote the following              pertinent        statutOry
           provisiona:
Hon. Looney E. Lindsey        - Page 2, V-312


           Art.   944, V.C.C.P.
            "All officers  charged by law with col-
     lecting    money in the name or for the use of
     the S,tate shall report in writing under oath
     to the respective    district    oourts of their
     aeveral counties,    on the first    day of each
     term, the amounts of money that have come to
     their hands since the last ter8 of their
     respective    courts aforesaid.’
           Art.   945, V.C.C.P.
           “Such repart       &all   at&e:
           “1.    me amount oolleoted.
           :2.    Uhon aa      from rlhom,aollmted.

           “3.    By virtue     OS vhat p~ooorr, ool-
                  1ectrd.
           “4.    The dirporition  that      haa boon
                  made of the wnq.

           “5.    IS no'money has been .collecteU,
                  the repoh shall so atate.'
           Art.   946, V.C.C.P.
            'A report, 'suck aa      Is required by the
      tvo pr0a.d~     articles,      llhal.1 al.80 bo rd.
      of all money8 oolleotod        for the count       vbich
     ropart   ahallbe   rd.     to   eaah mgular Pora ef
     the comlasioners       court    for each oouaty."
           Al?*& 947, V.C.C.P.
            "llir ofSlaers.charged  by law with the
     collection    of money; within the meaning of
     the three preceding artiolea,      and who are re-
     quired to make the reports thereln mentioned,
     apex District      and county attorneys,  clerk8
     of the district     and oountJ OOWts, she#lSSr,
     ~constables, ,+nd $.mtlaes of the peaoo.
           Art.   950, V.C.C.P.
           "The distiict       or county at30rn*y     ah&i
Hon. Looney E. Lindsey     - Page 3, V--312


     be entitled    to ten per oent of all fines,
     forfelturea’or    moneys collected for the
     State or county, upon judgments recovered
     by him; and the clerk of the court in
     which said judgments are rendered shall
     be entitled    to five per cent of the 8..
     mount of said judgments, to be paid out
     of the amount when oollected.”
           Art.   951, V.C.O.P,
            “The ~sheriff or other officer,    except
     a justice   of the peace or his clerk, who
     colleata   money for the State or county,
     except jury fees, under any provision       of
     this Code, shall be entitled     to retal:
     five per cent thereof when oollected.
     (Emphasis ours)
           Art.   1619, V.C.9.
            “Finea  iapoaed and judgments rendered
     by justices   of the peace shall be charged
     ;glzIethe      justice  imposing or rendering
                  He may discharge .aald lndebted-
     neaa by filing     with the county clerk the
     treasurer’s   recei t for the Smount thereof,
     or by showing to #ihe aatlafaction     of the’
     conuniasionera court that he has used due
     diligence   to collect   the same without avail,
     or that the same have been aatlafled      by im-
     prisonment or labor. ”
             !She Court held in the case of !4cLennan County
v. Boggeaa, 104 Tex. 311, 137 S.W. 346, that Article
1143, V.C.C.P.     (1911) (now Article 950, V.O.O.P.)   vaa
Inapplicable     to a justice of the peace.   lie quote the
following    from said case:                                :   .

            'With regard to the OOlleCtion of
    ,finea,   Sorroiturea,  or nioney due the state
     or county, vhile article     1013, (now 947)
     Code of Criminal Procedure,     charges jus-
     tioes of the peaoe with the duty of ool-
     lectlng   money, within the meaning of
     article8    1010, 1011, and 1012 (now 944,
     945, 946) of the Oode T; Criminal Pro-
Hon. Looney E. Lindsey     - Page 4, V- 312


     cedure, which relate to the collection
     of money in the name of the state, and
     the report thereof to the reapeative
     district    Courts of their ae~veralcoun-
     ties,    and of money collected       for the
     county to the commissioners’ court for
     each county, and prescribing          the nature
     of such report,     it I.3 clear that the ex-
     ercise of such duty of collection          means
     only their authority to receive the
     money from the person adjudged to pay,
     or from the officer       by whom it IS in
     fact collected,     and pay over to the pro-
     per source.      It la Umaterlal       whether or
     not the justice,      aa such officer,     should
     in the exercise     of his duty bd required
     to perform some services         without compen-
     sation having been provided therefor by
     law.’ Such is held to be incident          to the
     office,   ‘upon the acceptance of whidh the
     obligation     to perform is impoadd. -The
     mere fact that the nature of his office
     and the duties Imposed require him to
     perform, in addition to judicial,          cer-
     tain ministerial      services,    Is not auffi-
     cient to warrant the implication          that,
     because 5 per cent of the judgment col-
     lected is awarded the clerk of the court
     in which such judgment la recovered,
     therefore    it was the intent and purpose
     of the lawmaker to include,in the tery
      ‘clerk’ that of justice        of the peace.
     (Perentheais     ours)
           In view of the foregoing,         it la the manda-
tory duty of the justice     of the peeae~to exercise due
diligence  to coll~ot  $inea.baieaaed        3.n his Court; to
accept such sines and,aoatp tqmdsred to him by t@e
defendant or by an:‘oSSicar vho~~h~p’qolleated the same;
to keep a record df-allL~,qon$@b Pskeived~by~hlm lbpay-
rent of sines; an4 trJ:siaka,~~~popt~‘thp~eoS        19d to a~-
count for acme et this tiqa      a+ in thQ qurSner ‘pre--~
scribed by the statutes.
           The Conatitutlpn   firer the’ oo~enaatlon   that
nay be paid oertaln offlsera     and $uthori@6b the tigia-
lature to fix the &mpenabtion of.:qthqy.,gSSicera.      The
rule in Taxra relative’to    compenaatioh of public offi-
cials la that “M~orficer     may not cldipl or receive mg
Eon. Looney E. Lindsey    -   Page   5/V-312


mdney without a'law authorieing him to do so, and
clearly fixing the amount to whioh he la entitled."
RcLsnnan County v. Boggess, aupra. 'Binford v.
Robinson, 244 S.W. 807;.Crosby County Cattle Com-
pany v. McDermett, 281~S.W. 293; Duclos v. Rarrls
County, 291 S.W. 611, affirmed 298 S.W. 417.
           This office has repeatedly  ruled that a
justice  of the.peace Is not entitled  to retain com-
missions on Sines collected.   Attorney General's
Opinions Hos.'O-1162,  O-4091, O-5108 and 0-5180.
            Therefore, it is our Surther opinion that
the justioes   of the peace are not entitled  to compen-
sation for collecting   fines and aosta assessed in
their courts or for keeping a reoord and aooounting
for asme..
                          SUMMARY
            It is the mandatory duty of a jus-
     tice of,the peace to exercise      due dill-
     genae to colleot    Sines assessed in his
     Court; to accept such Sines and coats
     when tendered to him by the defendant
     or by an officer    who has collected
     same; to keep a record of all moneys
     received by him in,psyment of fines;        to
     make reports thereof and amount for
     Same at the times and in the manner
     ptieticribed by the stattites.   Such du-
     ties are’an.Lncld6nt     to the office  bf
     justiioe -of the peace for which no ape-
     cial compensation has been provided by
     the Legislature.     McLennan county v.
                 104 Tex. 311, 137 S.W.,346;
     ;f;B;44,      945, 946, 947, 950, 951,
         . . . .; Art. 1619, V.C.S.
                                       Very truly   yours
JR:djm                           ATTORREYGE&RALOFTEXAS


                                 %7fZSiv+
                                       Assistant
