Untitled Texas Attorney General Opinion ( 1947 )


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  •                                                                                      R-644
    EY       ‘#%DTERAL                 ‘,
    AUSTXN      11, TExas
    PRICE DANIEL.
    ATTORNEYGEYERAL
    July 25, 1947
    Hon. Word A. PVfokm,Jr.,
    County Lftorney,
    Croel~yCotulty,                                Ro:        Authority or the
    CronbbJton, Terns:,                                       County Clerk to
    reQuirs ‘thede-
    :.                                 ren48at to pay
    ror the tranrfsipt
    in a misdemeanor
    case in order to
    perroot,     kis appeal.
    Dbar Sir:
    we rerer     tb    your   letter     or    3~17   3,    1947, in
    whlck yru maleit       the   rbilm8g:
    "Is a County Clerk entitled to de-
    URd   rrom app*llant in a Qrtriul  oam
    oost  01 the trmmrip$ )r,$Orto the rimal
    dlsporition or      the    Oaae?R
    T h bo ,esl
    ts
    me85bd ag8inst a defendant in a
    0tiLIm1 0a8.OO.Onstltuts a part Of the punisbmnt, as
    indiaatrd by the following articles in VornoQ’8 Code or
    Criminal Proc6dura:
    &!tiQlO ,783. “#Nn t&O deirndant
    i,r only   rS.reP tie     Jadgmezit   s&all      bo   that
    the Nate Or T61as 1900vdr of the asfOnd-
    ant the amount    0r
    bf the *fo8oeut&b
    Hon. Lloyd A. Wicks, Jr. - Page 2   (V-313)
    8p88irY it, aad order it enroroed by the
    oases.”
    &%icle 791r Qn eaoh oaao of pot
    cuni8sy fine, an exeoution may Mane ror
    the fine and coets, theugh a capias was
    issued ror the defendant; a a Oe
    AI%iC~l67936 *Whea a defendant is
    oomicted of 8 misdwmrr*or and hie pun-
    ishimnt is assessed at a uecuniaifvrine
    a   . he shall be iamrisoiedin jail for
    a
    a surricientlength of tims to discharge
    the full amount of the fine and costs ad-
    judged against hi%; a . .*
    Artiele 794 previ&.esthat the deietiantwhe
    oamot pay "the rise and oosts adjudged agaim8t hii shall
    br required te do f#$M3@CZ&borwuntil said is paid.
    Rx parte Carson, 159 S.W. (2d) 126, is a mis-
    demeanor ease which involved the question as to whether
    OQUrt costs constitute a part Of the puni8hmnt  in a crim-
    ha1 case. On the point, the oeurt said:
    *Appellant'scontentionmust be sus-
    tained and the Aot held to be unconstitu-
    tional on still an&her ground. In Ex
    parts MaM, 39 Tex. Cr. R. 491, 
    46 S.W. 828
    , 73 Am0 St. Rep. 961, this Court, con-
    sistentwith all ether pronouncementson
    the subject, has aPlheredto the view that
    costs iticriminal cases are assessed as a
    partl.pf               for the conmission
    of the efrease oharged,"
    The statutes providing for appeals in crimi&
    nal caees appear in Vernon's Code of Criminal Procedure,
    as fellows:
    Article 013. *A defemlant in any
    crimiaal action ha8 the right of appeal
    under the rules hereinafterprescribed."
    Article 827. “An appeal is taken
    by &ring   notice thereof in open oourt.
    b * ,h"
    Ron. Lloyd A. Wicks, Jr. - Page 3   (V-313)
    Article 830, When the derendaat
    appeals in any misdenaanor oaae to the
    Court or Oririnal Ap9Mals, he shall, ii ha
    be in oastody, be committad to jail unless
    ;;wentar into reoognizance au prwidmd by
    0 Ir ror any eauae the dareadant rail8
    to enter into reoognizenaeduriag the term
    at whioh he waa tried, but gate notice and
    took an appeal frem suah oonrietion,he
    shall be permitted to give bail aad obtaim
    his release rrom custody by giving, arter
    the expirationor suoh term of oourt, his
    bail bond. 0 a*
    The defendant is not charged, in any lan,
    with any obligation or duty in regard to the tranrcript
    on an appeal in a oriniaal case. The judgment lgaiast
    M;is   suspendedwhoa he gires notiae or appeal in open
    If he enters into recognizenae,or gives an ap-
    peal ioad, aa permitted by Article 830, he is a free man
    if no tranaoript is meat by the trial oourt clerk to the
    clerk of the Court of Crfmiul Appeala- Why should ho
    pay ror the trensaript? The ‘rule is stated in Taxaa Jur-
    iaprudenco,Vol. 4, page 456, Seetion 316, au followa:
    I)
    . 0 0 It is the duty or the clerk,
    not the appellant, to make out and forward
    the transcriptto the appellate court, even
    in misdemeanoroases; and ror this reason,
    tha appael will not be dismissed beoauae of
    delay in filing the transcriptin the appel-
    late c0urt.a
    The pertinent statute8are:
    Artiale 84l. *The Clerk or a Court
    rroa which an appeel is taken shall pre-
    pare aa soon a8 practicable,a transorlpt
    in duplicate, in wery case in whioh an ap-
    peal has boon taken, which shell contain
    all the proceedingshad in the case and
    Hon. Lloyd A. Wicks, Jr. - Page 4   (V-313)
    conform to the rules governing tran-
    scripts in civil cases. . . and tke
    original to be rorwarded to the Clerk
    or the Court or Criminal Appeals as
    provided in Article 843 of the Code
    of Criminal Prooedure of the State or
    Texas, 19250 Provided the Clerk shall
    not charge for the extra copyi*
    Article 043a "As soon as pre-
    pared, the clerk shall forward the
    transcriptby safe oonveyance, charges
    paid, inolosed in a securely seal*&
    envelope) dlreoted t,othe clerk of the
    Court or Criminal Appeal&*
    Tha on@ dlstilnctio~made by law batwaen
    transcriptsin felbny and misdemeanor cases is that the
    transoript,ain feleny oases shall have prrferenor. (or-
    tic10 842, V&.C.P.)
    The case of Bdmondsea v\.State, 6 S.W. (2d)
    119, is a o&se in which the dsrendant refused to pay for
    the transcriptand a aotion was mada to the aourt or Crim-
    inal Appeals to dismiss the o&se beeauae pb tra&scriptNas
    filed. The Court said;
    "Attorneysfor the state have
    filed a motion to dismiss this appeal
    based upan twtwo
    grounds:
    s(l) Because the trensariptin
    this case was not riled within 90 days
    after the adjournment ef the oeurt at
    whioh convictionwas had.
    "(2) Beaause the tranaeriptwas
    forwarded by the attorney of appellant
    and not by the district clerk.
    nUnder the terms of articles 843
    and 845, C.C.P., it Ss mada the duty of
    the clerk to prepare and forward the
    trenacrlpt to this court. It was said
    in Young v. State, 80 Tex. Cr. R. 594,
    21S S.W. 505:
    "'The accused is not re8pOnSiblS
    for the reoord in criminal oases. The
    olerk is required to make out and for-
    ward the transcriptto the clerk of the
    court.t
    Hon. Lloyd A. Wicks, Jr. - Page 5   (V-313)   .
    *It affirmativelyappears in the
    motion that the failure to file the tran-
    script in time was au0 to the demand or
    the district clerk for his fees for mak-
    ing out the transcript. Such a fee could
    not be demanded or legally received by
    the clerk in a felony aase,"
    The motion to dismiss was overruled.
    Article 842 reads:
    “Where the Court of Criminal Ap-
    peals awards a new trial to the defendant,
    the aause shall stand as it would have
    stood in case the new trial haa been @ant-
    ed by the court below."
    That would not be possible if the defendant
    has been required to suffer a part of the punishment by
    paying costs im the case.
    Attorney General's Opinion No. O-166-A (1939)
    is pertinent to your inquiry, and we enclose a copy 0r it
    for your information. That opinion holds, among other
    things, that the County Clerk cannot compel the defendant
    to pay the cost of the transcript,in a criminalproceed-
    ing, before it is sent up on appeal.
    We are of the opinion that the County Clerk
    may not require the defendant to pay for the transcript
    in a misdemeanor case in order to perfect his appeal to
    the Court of Criminal Appeals. Ii the case is arrimel,
    the cost of the transcriptmay be colleoted from the de-
    fendant as other costs are collected.
    The County Clerk is not authorized
    to require a defendant in a misdemeanor
    case to pay for the transcript in order
    to perfect his appeal to the Court of Crim-
    inal Appeals, If the case is affirmed, the
    cost of the transcript may be collecteafram
    Hon. Lloyd A. wicks, Jr. - Page 6   (V-313)
    the defendant as o$her costs are col-
    lected. F&noason v‘.State, 6 S,W,
    (2rl)119; Article 841, V.C.S.; Opinion
    No. O-166-A.
    Yours very truly
    OF TEXAS
    ATTORNEY OzsNltRhz,
    By
    s?f--*~+
    W. T. Wil.lislr.3
    WTW:mmo:wb                    Assistant
    

Document Info

Docket Number: V-313

Judges: Price Daniel

Filed Date: 7/2/1947

Precedential Status: Precedential

Modified Date: 2/18/2017