             THE    ATTORNEY    GENERAL
                       OF TEXAS

                         December 19, 1989



Honorable Jesusa Sanchez-Vera    Opinion No. JM-1120
Jim Wells County Attorney
P. 0. Drawer 2080                Re:   Whether a commissioners
Alice, Texas   78333             court may authorize a justice
                                 of the peace to retain a por-
                                 tion of assessed    fines for
                                 the purpose of funding addi-
                                 tional positions   (RQ-1851)

Dear Ms. Sanchez-Vera:

     You ask whether a justice of the peace may, with the
authorization  and approval of the commissioners      court,
assess a $50 fine in a Class C misdemeanor "bad check" case
and retain a portion of the fine to pay the salary of an
additional employee in his office.

     You advise that a justice of the peace "is swamped with
hot checks under $20.00" and the commissioners court refuses
to provide additional help for the office.      The justice
requests the authorization and approval of the commissioners
court to assess each hot check violator a fine of $50 and
retain a portion of the fine to pay the salary of an addi-
tional employee for his office.

     Section 112.052 of the Local Government Code provides
that a fine imposed by a justice of the peace shall be
charged against the justice. Subsection      (b) of sect:.;
112.052 provides    that the    justice may discharge
indebtedness by filing a county treasurer's receipt for the
amount with the county clerk, showing to the satisfaction
of the commissioners   court that the justice has used due
diligence in an attempt to collect the fine, or showing that
the fine has been satisfied by imprisonment or labor.1




     1. The United States Supreme     Court in Tate v. Short,
401 U.S.  395   (1971)  held   that a  defendant   may not .be
imprisoned because   he is   too poor  to pay  his  fine.  &
Attorney General Opinion JM-977 (1988).




                                P. 5888
Honorable Jesusa Sanchez-Vera - Page 2   (JM-1120)




     Commissioners courts may exercise only such powers  as
are specifically  conferred upon them by the constitution
or the statutes.  Canales v. Laughlin, 214 S.W.2d 451, 453
(Tex. 1948); see Tex. Const. art. V, § 18.     Neither  the
constitution nor the statutes empower the commissioners
court with authority to allow a justice of the peace to
retain a portion of fines assessed to hire an additional
employee.

     To permit a justice of the peace to assess a minimum
fine of $50 in every Class C misdemeanor hot check case to
pay the salary of an employee would also violate the United
States and Texas Constitutions.  Section 12.23 of the Penal
Code provides that a person adjudged guilty of a Class C
misdemeanor shall be punished by a fine not to exceed  $200.
The system under consideration would make the penalty in a
Class C misdemeanor   hot check case in Jim Wells County
a fine of not less than $50 nor more than $200. In Attorney
General Opinion JM-880 (1988) a statute allowing a commis-
sioners court to set fees in misdemeanor    cases was found
unconstitutional.  Attorney General Opinion JM-880 stated:

           In Texas, costs in misdemeanor      criminal
        cases are assessed as part of the punishment.
        Ex Dar-,          159 S.W.2d 126 (Tex. Crim.
        App. 1942): Ex aarte Mann, 46 S.W. 828    (Tex.
        Crim. App. 1898). See also Attorney     General
        ",ifh~;n JM-443 (1986). Cf. United States v.
                  809 F.2d 1504     (11th Cir.
        (hold&g imposition of costs as punishmeAz8:b
        be constitutional).   A law allowing different
        costs to be assessed    in different   counties
        for the same penal offense would have the
        effect of allowing the aenaltv      for state-
        defined crimes to varv from countv to county
        and would violate    both  'due nrocess'    and
        'equal urotection'    constitutional    rishts.
        U.S. Const., 5th Amend.,     14th Amend.:  Tex.
        Const., art.
        suora. See Meiet"::    iziteEX 6~~'~eW.~~'"~?~
                 --
        (Tex. App.    Houston [14th bist.] 1982, pet.
        ref'd). See also Ex Parte Fercuson,         132
        S.W.2d 408 (Tex. Crim. APP. 1939); Ex uarte
        Sizemore,   8 S.W.2d   134 (Tex. Crim. App.
        1928).   (Emphasis added.)

Id. at 3. Assessment of a minimum $50 fine in every Class C
misdemeanor hot check case in order to defray the cost of an
additional employee would result in the penalty for a state
defined crime to be different in Jim Wells County than it is
in other counties and would violate both "due process"   and
"equal protection" constitutional rights.



                              P. 5889
Honorable Jesusa Sanchez-Vera - Page 3 (JM-1120)




                       SUMMARY
           A countv commissioners    court mav    not
        authorize a-justice of the peace to retain a
        portion of assessed fines for the purposes of
        funding an additional employee.




                                   JIM     MATTOX
                                   Attorney General of Texas
MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




                              P. 5890
