November 10, 1965


Honorable Wayne B. Davis     Opinion NQ. C-542
County Attorney
Goliad County                Re:    If a fine of $1.00 and costs
Gollad, Texas                       is assessed In the Justice
                                    of the Peace Court, how much
Dear Mr. Davis:                     money is to be paid?
     This is In response to your recent request for an opinion
of this office concerning the following question:
              "If a fine of $1.00 and costs Is ~assessed
               in the Justice of the Peace Court, how
               much money Is to be paid?"
     For the purpose of this opinion It is assumed that your
question Is directed toward cases involving a violation of
any Penal Statute or of the Uniform Act Regulating Traffic
on Highways. This Is assumed because the new Code of Criminal
Procedure for the State of Texas will effect a change in
court costs In Justice of the Peace Courts in these types of
cases.
    Article 1068, Vernon's Code of Criminal Procedure pro-
vides as follows:
              “If the defendant pleads guilty to a
               charge before a Justice, the fee allow-
               ed the attorney representingthe State
               shall be ten dollars ($10.00 . The
                                            tate in
               attorney who represents the E!
               a criminal action In a Justice's Court
               shall receive, for each convictionon
               a plea of not guilty, where no ap eal
               is taken, fifteen dollars ($15.00P ."
     On January 1, 1966, the effective date of the new Code
of Criminal Procedure, Article 1068 will have been repealed
by Article 53.03,.Code of Criminal Procedure of Texas, 1966.
Said Article provides as follows:
              "The attorney representing the State be-
               fore a Justice Court shall receive no
               fee for his appearance before said Court
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Honorable Wayne B. Davis - Page 2       Opinion No. (c-542)


                in a case Involving the violation of
                any Penal Statute or of the Uniform Act
                Regulating Traffic on Highways."
     Article 1074, Vernon's Code of Criminal Procedure,pro-
vides as follows:
               "In each case of conviction In a County
                Court, or a County Court at law, whether
                by a Jury or by a Court, there shall be
                taxed against the defendant or against
                all defendants,when several are held
                         a trial fee of five dollars
                g%y      the same to be collected and
                paid o&r in the same manner as In the
                case of a jury fee, and $n the Justice
                Courts the trial fee shall be the sum
                of five dollars and fifty cents ($5.50).”
     As of January 1, 1966, the above quoted Article 1074
will have been repealed by Article 53.06, Code of Criminal
Procedure of Texas, 1.966. Said Article  53.06 will provide
as follows:
               "In each case of conviction in a County
                Court or a County Court at law, whether
                by a Jury or by a clerk, there shall be
                taxed against the defendant or against
                all defendants,when several are held
                jointly, a trial fee of $5.00, the same
                to be collected and paid over In the
                same manner as in the case of a jury fee;
                and there shall be no trial fee allowed
                in a Justice Court In a case involving
                the violation of any Penal Statute or
                of the Uniform Act Regulating Traffic on
                Highways."
     In view of the above quoted .Articles,It is seen that
as of January 1, 1966, there will no longer be any state's
attorney fee or trial fee In the Justice Courts, involving
the violat$on of any Penal Statute or of the Uniform Act
Regulating Traffic on Highways.
     Since the total of these two fees on a plea of guilty
formerlywas $15.50, and on a plea of not guilty where a con-
viction was obtained, $SO.5O, it is the opinion of this office
that the above mentioned sums, as of January 1, 1966, may not
be assessed as costs In Justice Courtsin cases involvingthe
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Honorable Wayne B. Davis - Page 3     Opinion No. (C-542)


violation of any Penal Statute or of the Uniform Act Regulat-
ing Traffic on Highways.
     This is not to say, however, that in no Instance may
any costs at all be assessed in Justice of the Peace Courts
in criminal cases. Article  53.01 of the 1966 Code specifi-
cally sets out certain fees for.serviceswhich, If performed
by the sheriff or any other peace officer In a misdemeanor
case, are to be taxed against the defendant on conviction.
Of course these fees will not be present in every case in
Justice of~the Peace Courts, but If they are performed, they
shall be taxed against the defendant as costs in the case.
For example, Article 53.01 (1) provides a fee of three dollars
($2.00) payable to the sheriff for executing a warrant of
arrest or capias, or making an arrest without warrant. In
the eventaany one or more of the fees provided for in Article
53.01 are applicable, they shall be taxed as court costs
against the defendant In misdemeanor cases in Justice Courts.
     It Is also pointed out that Article 54.02 (b) of the
1966 Code specificallysets out that Article  1075 of the Code
of Criminal Procedure, 1925, Is not repealed. This Article
provides for a jury fee to be assessed against the defendant
in a case tried by a jury in a Justice Court in the event
of a conviction.
     It is, therefore, Impossible to specificallyanswer
your question. If, after January 1, 1966, a fine of $1.00
and-costs .isassessed in a Justice of the Peace Court, and
there have been no costs Incurred then only $1.00 will be
assessed. However, If some of these costs have been ln-
curred, they shall be assessed against the defendant. How-
ever,.afterthe above mentioned date, Articles 53.03 and
53.06 prevent the assessment of trial fees or State's attorneys
fees in cases Involving the violation of sny Penal Statute or
of the Uniform Act Regulating Traffic on Highways brought in
Justice of the Peace Courts.
       Subsequent to~your request, another County Attorney re-
quested our opinion as to the constitutionalityof Article
53.03.    In order to avoid writing another opinion, we will
answer his question in this opinion, and send him a copy.
     As we are unable to find a constitutionalprovision that
makes it mandatory that the Legislature provide a fee to be
allowed the attorney representingthe State in criminal cases



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Hohorable Wayne B. Davis - Page 4           Opinion N6. (c-542)


In Justice of the Peace Courts, it Is oursopinion that
Article 53.03 is constltutlonal
                         SUNMARY
     Articles       and 5 .06, Code of Criminal Pro-
                 53.03
     cedure.of Texas, 1962, abolish trlal,feesand
     State's attorneys fees in Justice of the Peace
     Courts. However, tithercosts shall be assessed
     in these types of.cases if they have been in-
     curred. Article 53.03 Is constitutional.
                                    Yours very truly,
                                    WAGGONER CARR
                                    Attorney General of Texas




SLK/lh
APPROVED:
OPINION COMMITTBE
W. V. Geppert, Chairman
Robert'Owen
Tom Routt
Robert Flowers
Harold Kennedy
APPROVED FORTHE ATTORNEY GENERAL        .
BY: T. B. Wright       .




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