 .     .

                                                                      R-566



                   THEATTOWNEY                     GENERAL
                                OP TEXAS
                               ‘%ULilTIN 11. m
PRICE   DANIEL
ATTORNEY GENERAL
                                  June 23, 1947

      Hon. Elmer H. Parish                       Opinion No. V-260
      District Attorney
      Wichita County                             Re:     The authority of a
      Wichita Falls, Texas                               Justice of the Peace
                                                         to charge the fee
      Dear Sir:                                          allowed by Article
                                                         1052, V.C.C.P. ,when
                                                         he sits as a “Court
                                                         of Inquiry” under
                                                         Arttcle 006,V.C.C.P.
                   In your letter dated June 6, 1947, receipt
      of which was acknowledged on June 9, 1947, you requested
      an opinion -of this Department on the following:
                      Way a Justice of the Peace in a
              county of more than 20,000 population,
              charge the $2.50 fee as allowed by Ar-
              ticle   1052, C.C.P., when he sits as a
              magistrate under Article 886, C.C.P., as
              a court of Inquiry, wherein he adduces
              sufficient   evidence to warrant prosecu-
              tion, and complaint is made based upon
              that evidenoe and docketed as a new
              case on his docket and then disposed of
              by the Justice of the Peace?
                     “In the case at hand, no individ-
              ual was under arrest;  the Justice of the
              Peace was conducting a hearing to ascer-
              tain if any law had been violated,   and,
              if so, by whom.”
                     Article   1052, V.C.C.P.,          provides   in part:
                    ” . . .Two dollars and fifty   cents
              shall be paid by the county to the Jus-
              tice of the Peace, for each criminal ao-
              tion tried and finally   disposed of be-
              fore him.”
                     Article   886, V.C.C.P.,          provides:
                    When a Justice       of the Peace has
              good cause to believe      that an offense
Hon. Elmer H. Parish    - Page 2


      has been, or is about to be, coa-
      nitted against the laws of this
      state! he may summon and examine
      any witness in relation   thereto.
      If it appears from the statement
      of any witness that an ~offense
      has been oomaitted,   the Justioe
      shall reduce said statements to
      writing and cause the same to be
      sworn to by each witness making
      the same; and issue a warrant for
      the arrest of the offender,    the
      same as If complaint had been
      made and filed.”
             Article   24 of Vernon’s   Penal Code provides:
             ‘“A criminal   action means the
      whole or any part of the procedure
      which the law provides for bringing
      offenders   to justice;    and the terms
      ‘prosecution’    and t accusation’ are
      used in the same sense.”
              In Brown v, State, 118 S. I:‘. 139, the Court,
in discussion   a “Court of Inquiry” held by a Justice of
the Peace, stated:
             “He was summoning before him-
      self as Justice of the Peace, wit-
      nesses solely for the purpose, and
      only with the view of asoertaining
      If any crimes  or violations   had been
      committed. . . He had no case before
      him; he was investigating    as Justice
      of the Peace, with a view and for
      the purpose of finding,    or procuring,
      or originating  a case or cases.W
              It will be noted that Article    1052, V.C.C.P.,
provides that the fee shall be paid to the Justice of the
Peace “for each criminal a&ion triad and finally       dis-
posed of before him.” A *Court of Inquiry” as provided
for in Article   886, V.C.C.P., is not a proceeding in which
a criminal action is tried and finally     disposed of but an
inquiry to determine whether or not a criminal action
should be instituted.
.    .




     Hon. Elmer H. Parish    - Page 3


                   Article 886, V.C.C.P.,    provides that if it ap-
    pears to the Justice of the Peace that an offense has been
    committed he shall “issue a warrant, for the arrest of the
    offender,    the same as if a complaint had been made and
    filed.”    It is well settled    that the complaint is the ini-
    tial step in a critinal    prosecution.     12 Tex. Juris. 382.
    It therefore    appears that Article    886, V.C.C.P.,    is pro-
    viding another method of instituting       a criminal action.
    If it appears at the court of inquiry that no offense has
    been committed and no warrant is issued, then no criminal
    action is ever commenced, But if the evidence at the in-
    quiry is sufficient    to justify   the issuance of a warrant
    and one is in fact issued, a criminal action is at that
    time commenced and in no wise tried and finally         disposed
    Of.    If no warrant is issued but a complaint is made based
    upon the evidence adduced at the court of inquiry and dock-
    eted on the docket of the Justice of the Peace, the crimi-
    nal action is commenced upon the filing        of the cosiplaint
    and a criminal action is not tried and finally         disposed
    of until all the issues of law and fact have been deter-
    mined, and the final judgment entered.
                   Fee statutes are strictly     construed and UA-
     less there is an express authority to pay a fee none may
     be paid.    There is no provision made for paying a fee to
     a Justice of the Peace for holding a court of inquir’y as
     provided for in Article    886, V.C.C.P.     It is a familiar
     rule with respect to compensation of public officers         that
     they shall receive such ‘salary,     fees, or compensation OA-
          as may be prescribed  by law.     If an additional   duty is
    tii posed upon an .officer  for which no fee or compensation
     is fixed by law, the duty must be performed as an addition-
     al burden imposed by law without extra compensation thsre-
     for.    This rule has been uniformly followed by the courts
     and by the opinions of this department.        (Atty.   Gen. Opin-
     ion No. V-144)    It therefore  follows that your question
     should be answered in the negative.

                                  SUMMARY


                  Public officers    shall only receive such
           salary, fees, or compensation as my be pre-
           scribed by law.     A Justice of the Peace may
           AOt charge the fee provided for in Article
           1052, V.C.C.P.,   where he sits as a Court of
Hon. Elmer H. Parish   - Page   4


       Inquiry under the provisions  of Artiele 886,
       V.C.C.P., inasmuch as a "Court of Inquiry"
       is not a criminal action.

                                         Very truly   yours
                                    A!l'TORNEYGENERAL
                                                   OF TEXAS


                                    BY
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                                         Assistant


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