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           OFFICE   OF THE AmORNEY       GENERAL   OF TEXAS
                                AUSTIN




    HonorableBen J. Dean
    DistrictAttorney
    Breckenriaga,Texas

,   Dear Sir:


             Your request f0
    carefullyconkideredby t
    your request as fol.l.orvs:
               Where a defend
          ing wlillsintoxlcete




                           9, Vernon*s Annotated Texas Code of
    Cri                    0ads as follows:
                       aefendant is inaictea.fora felony
                     nvicticn f,ia :udsbnent is by fine
          or ccafine:xe&,in 12x county jail, or b:rLath
          such fioe Ed confineaant in the county jail
          or convicted of 2 nisdemanor, no coats shall
          be pid by the State to any officer. All
          costs in such C~~LJSsi>:\llbe taxed, asseesed
          2nd oolleaf,e~23 in misdemaafioroa8es.W
    f!GnOrable   Ben   J. Dean, page 2


             Article 1071, Verno:z8sAnnotated Texas Code of
    cxj,siBal
            Procedure, reads as follci4s:
               *Justices.of thepeaoe who sit as an
          examining court in zisdoaeanor cases ahall
          be eutitkd t0 the Salxd 'feesallowed by
          lmv to such-justicesfor stiilar services
          in the trial of suoh cases, not tc exoeed
          three dollars in any one case, to be paid
          by the defendant in case of Pin&l convic-
          tion**
         ~~ ~--Ki%icle ,1052, Veruon*'s
                                      Annotated Texas Cods of
,   Criminalprocedure,,reads as fol.lom:
              "Three Dbllara shall be pala by the
         county to the County Judge, or Judge or
         the Court ut Law, and Wo Dollars and fifty
         cents shall be paid by the county to the
         Justice of the Peace, for each crizihaal
         action tried and Pirally ais::oseaof be-
         Pore him. Provided, hoY:ever,that in all
         counties having a population of 20,000 or
         less,,the Justice of the r"e&cashall re-
         ceive a trial Pee of Three Dclfars. Srtch
         Judge or Justice shall present to the
         Comissioners' Court of his cod&y at a
         regular tern thereof, a writttiiaccount
         specifying each criirinalaction in which
         he claim such Pee, CGztifiGa  5y such Judge
         or Justice to be correct, aS Piled with
         the County Clerk. The Comi33ioaerst
         Court shall approve such account for such
         amount as they find to be correcti;and
         order a draft to be issued ur,onthe County
         Treasuror in Psvor of such Jud!zeor JusSice
         for the mount so approved. Provided the
         Comissioners' Court shall net pay any
         account or trial Pees in auy case tried and
         in which an acquittal is had unless the
         State of Texas was rsg::esontedin the trial
         of said came by the County Attcrno:~,or
         his assistsrit,Crisinal FlistricbAttorney
         or his assiatnnt, ilndthe cartificats of
         said Attcrnsy is n*,tnchedto mid rlccount
gcaorableBen J. Dean, Page i


    certifyinsto the fact that said cause was
    tried$ and tha State of Texas vns repre-
    sented,and that in his judgment there was
    sufficientevidence-insaid cause to denmnd
    a trial Of sane."
         The population of Stephens Countyr Texas, is loss
than &O,OoO inhabitantsaccording to the 1940 Federal Cen-
8lS.
          Opinion No. C-2877 cf this department passes on
a situationwhere a Justice o? the Penae (on the fee sys-
tem) holds an examining trial where a defendant is char,ned
with a felony, to wit, drlvirg a zotor re3icle while in-
toxicatedand where the constable (on the fee system)
cakes the arrest for em-ining trial, etc., o.ndw3are the
Grand Jury indicts the defendant and %here upon trial the
defendantis @*zan a fine and jail sentence and where the
defendant:does not pay his fine and costs but lays the
8638 out in jail or works it out on the county roads or
ether county projects. This opinion holds that under
said facts the county is liable to the Justice of the
Peace and constable for one-half of their legal examining
trial fees in said cause. ?ieenclose hercAt!i a cow of opin-
icn No. O-2877 for your information.
          In ansvierto your first question you are res-
pectfullyadvised that it is the opinicn of this depart+
kent that the Justice of the Peace of Stephens County
would be entitled to collect a fee of $3.CC from the
defendantunder the facts stated:
          fn answer to your seccnd question it is our
opinionthat under the facts stated if the defendantcould
not pay the fine and costs and laid 9828 out indai.1 or
ororkedit out on the county roads or on a county project
the county ~:wrJahe liable to the Justice for one-half
of his examining trial fee under Article 1055, 7. A. T.
c. c. P.
                                      ,,,\..
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     P-.
.,



           cosorableBen J. Dean, Page~4


                    It IS to be understood tixt we do not pass upon
           the oonstitutionality .ofArticle 1071 of the Code of
           criatnalProcedure, s-spra.
                              1                VerJr&Cly yours




           'UF:GO




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