Untitled Texas Attorney General Opinion ( 1943 )

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OFFICE OF THE ATI-ORNEY GENERAL OF TEXAS
AUSTIN
acmwoeMuw
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4moroble T1 XC.Wlkinson
County Au6ttor; Hill Gamty
ifillnbaro a Taxns
Dear 32r:
.,
Gith un opinion
xk of Hill County
Stete of Texss the
1026, 'Code of Cri:aIn-
tion of tile constitu-
tmnt of tbe officcr*s
plication repeal or,
Code of Cri:alnnl -Pxocedwo, :
District Clerk of Ilill Couaty au-
or has ouch article been expressly or by kaplicn-
tion repealed or sugcraedad .by th3 &option of the
constitutions1 a2endrxent an&the officer's salary
if-w?
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,: I’& ”
honorable T. E. Kilhinson, pago 2
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“3. If In anapler to question No, 2 you
bold that it Is the duty OS the District Clerk
ot Hill County to collect from a defendant in a
orlslnol case the fees provided in Article lC’g4,
Code of Gritninul ?rocedure, then are such f ces’
to be charged and oollocted in all Salon? CQSCS
or BTOthe sa;3e to be oh;lrged end collected only
in felony cases in whioh the punisbmant assessed _
18 a Sine-or jail sentence? .
*4..Xay the District Clerk refuse to doliver
a transcript r0r riling on appeal 0r a criminal
adse until the costs of proparing the 8an!o havo
been paid or an affidavit of inability to pay has
been Silcd?
“5. his it tbo duty of the District Clerk in
Civil cases to tax and colleot the tees provided .
for in ititicle 3927 as amended in 1941 by aots OS
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the‘ 47th Ingloluture and in the abocnce oi the Sil-.
lng bf an aSSidavit OS tbe inability to pay costs,
may the District Clerk refuse to deliver 8 transcript
on appeal until the same hns been~ paid by the party
applying t h.eror or?
“6. Is it the duty of the Distridt Glerkof
Kill County to charge and use diltgcnce to collect
the Seas provided in Article 1064, G. G. P. in all
felony cases Inwhich a conviction is obtained or
is this drrty linitod to cases in wbiob the fu$t~$-
ment assessed is a Sine or jail sentence?
Hill County has a population of 38,355 i.nb.3bitur.ts
according to the 1940 Pederal Census and the county offXcials
of oaid county are compensated on anannual 6aLnry basis.
Bectionc $ QDd 5 of Article 39126, Vernon’s Annotated
Civil Gtatutefj, re&::RS SOLlOWS:
Wectio’n 1. Do district officer shall be paid
by the State oS Toxns nny Sees or comiosion for any
~oc3rvicogeriormed by him; nox shall the Stxte or any
county pay to any county officer in any county con-
tuining a populctlon of tncnty thousand (29,000) in-
hebitants or 1~0x8 according to the 1:rst preceding
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.ye&aral Cenouo any feo ox covA3sion for any
sorvioe by him performed as such officer; provided,
however, that tho aesosoor and oolloctor of txxea
shall oontinuo to collect and retain for the bene-
f.Lt of the Officerof Salnry Fund or funds herein7
altos provided for, all feos and oommlsslons which
he is authorizod under the Isw to collect; and it ‘.
,shall be his duty to aooount for and to pay all
euoh monies received by him into the fund or funds
oroated and provided for under the provisions of
this Aot,; provided further, thnt the provisions or
this Scation shall not offoct the payment of costs
in civil cases by the State, .but all such costs so
paid shall be acoounted for by the officers collcct-
ing the Seme, as they are required under the provi-
oions of this Act to ncoount for fees, coxmissionn
and costs oollootod from privet0 partics.’ *. * _ ‘
“SOO. 5. ft shall bo the duty or all OrriW8
to oxarge’and oolloct in the Manner authorized by
law all fees and oondesions whioh 01-o per:aA.ca by
law to be assessad and collected for 011 Official
service performed by them. AR nnd when 8UChfees
are collected they sbaXl be deposited in the Officers’
’ Salary Jund, or funds provided in this Act. In event
the Co3rJ1ssionore’ Court finds that the failure to
collect any Se0 ox conniosion was dua to neglect on
the port of the ofricor ohargod vjith the resgonsi- .
bility or collecting aaxe, the amount or such roe or
commission shall be deduoted from the salary of such
officer. Before any such deduction IS msde, the Com-
mhwioners Court shall furnish such ofricer with an
itemized state:;ont of the uncollected fees with which
his acoount is to be chur&ed, and shall notify such
OfClear or the tine and plc:cc fox a hearing on snma,
to dctori%ine whether such officer ~733 guilty of neoli~-
eence, which tLqo for hearing shall be at Icsst ten
dogs subsequent to the date of notlce, Unless an of-,
ficer lo ckmrged by 1.~ with the responsibility or
CollcotinS foes, the Coimnissioners Court shall not
in any event make ony deductions’ from the authorized
salary of such 0rfdcor.9v
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Article 1026, Vernon’s Annotated Code of Criminal
procodufe, provides:
eIh eaoh oountg where there has been OfIs&
at the precediaa presidential election 3000 votes
or over, the district olerk or orlsin.rl district
olerk &sll. receive the following fees: Eight dol-
lars for each felony oaee finally disqo3e of with-
out trial or dismissed, or tried by jury 4v:hether
the defendant bo ttCquittCd oc convicted; eight QentS
for each one hundred v:ords in each tran3CriPt on appeal
or cban6e 0r venue; olghty cents for eaterin Wegent
In habeas corpus cusea, and eight cents for esch on0
hundred words for preparing transcript in habeas OOT-,
pus canes. In no event 3hGll the fe33 in habeac oor-
pus es303 exoeed eight dollars in any one case. In
.ench county where loss thm 3000 such votes h:lvc been
M, east, ``ch~clerk shall raceive ten dollarn for euch
telony oase so dioposod of, and ten cents ror each one
hundred-words in suoh transoripts, and oilc dollar for
enterin judgxent in cnoh habeas corpus. The district
clerk of any oomty shall receive fifty cents for re-
cording ea’ch nooount of the sheriff.“~,
In view 0r the rOrOflOingproviulons of ,irticle 3912e,
suma, you are respectfully advised that ~the District Clerk
of IN11 County is not entitled to collect rrom the State of
Texas the fees provided for in Article 1026, Vernon's Annotated
Coda of Crlninal i?rocctlure. r\rtiolo 1026 Jma bczn superseded
by the Officers’ Salary Lil\‘fof this State insofar 33 those
Counties vihero cou;?ty official8 are couponssted on an annual
salary b33i3 3re 00nO0ma.
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F!e now consider youv second question.. Generally
BPeaking, Chapter 4, Title 15 of the Code of Criminal Pxoocdure,
Prosoribes t.he cost to bo tuxed aGainat dore%lants in a n;isde-
mmor case ‘upon conviction. (See Tex. Jur.
aad the case or Overstrcct v. State ~dib~f+$+&~: 392*
Article 1064, Vernonfs Irnnot%ted Code of Criminal
hOceduro, is R statute allowing certein fees t0 clerk3 of the
di3trict and ooudiy in clninal cases to be p%id by the
courts
defendant upon conviction. Said article is contniucd in Chap-
ter 4, Title 15 of tho Code of Crinrlnal I’rocedure.
d
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Article J&9, Vernon98 be3tca Code of Criminal
ivocodure, provides:
nff the defonaant 1s lndioted for R felony
and upon conviction his punishment Is by Sine oris..,
orisij
conflne.mnt In the county jail, or by both such .
Sine andmcouSlne.3ent in the county jail. or con-
victed of ZI zabderganor, no ~05~8 shall be pnld
by the State to any officer. All costs In such
C38e8 shall be taxed, assetma ana 00imtea 88
in ;nL-dencanoroases.n
As heretofore stated, Article 1064, Veinon’s Code of
Criuinal Yroceaure, prcooribes oertain fees which are to be
yuld to the district and county clerks by the defenaont upon
conviction In mIsde3eanor oasesc Xn view 0S Article 1019,
eu?ra, It Is our opinion that In felony cascs~ In whioh the
pmlol~ent assessed lo R Slae or a jail sentehoe, or both Sine
and jail sentence, It Is the duty of the District Clerk in auoh
oaes to tax, assess and collcot the Sees providea by &tlcle
1064, supra, as In nlsdemanor cases. .;’
Article 1064, supfa, has not been repealed by tho
CfSIcers* Dalury Law of this State. However, w!iere the Dls-
trlct Clerk Is oo;openoated on an annual. basis, the Sees colleoted
under said article, mot be depooited In the OfSicers( Salary
ruad of the county. It Is our further opinion that Article
.lGG4 d>es not authorize the District Clerk to collect from any
dcfendont any Sees whatsoever In a felony cam where the punish-
mt ansessea Is lmprisonmnt In the penitentiary or acath. In
Other words, If the defecdant IS Indicted for a felony end upon
conviction his puniniment lo by Sine or aonSInezent In the county
1311, or by both such SI;le and confinezznt in the county jail,
cr convicted of a mIsde,;lcunor,~ the Sees $rovIded by Article
1364 suet be taxed, assessed and oolloctcd as in nIodo;~eanor
caL;OS, (See the- case of Dzmte Taylor; 155 S. i’/. I 1315)
Vrh::tv,ac said In a.?sv:cr. to your second quest~ion
k:sbOrs your third, ma sixth questions. Therefore, se deem
I: u3noccssury tc discuss these questions further.
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166
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’ Yourfourth question 1s respectfully an&ered ?n
th0 negetive. This Identical question has been po3scd upun
by the ,CCu~$~of CrI@ul kppeuls ,ia the ca3cs of Youde v. &ate,
21s 3. ; Una EaXIUa8On v. btfit0, 6 si we (2TjTi9, both
~3303 expressly answering, the Idontioal question presented lu
go~r I?quIry In the negative.
With rorerenca to your fifth question, you sre ad-
visea th&, Canerally upeak,inC, it 18 the duty of the Dlstriot
Clerk ln olvll ,ca3es to tax aad collect the fees provided for
In .,rtIcle 3927, Vcmon's Atnnoteted Civil Statutes; however,
the District Clark cannot refuse to doliv3r a transoript on
a?paul until. the same has been puld fox by th.3 party applying
therefor, where there has been no affidavit of Inability to
pay costs mea. A question Identical to your fifth queotiou
: was answcrea In the nefiative by the ;iu?rer:;e Court of this State
in the early oaso of m-
V.’ CostLo& 7 Tax. 460. Stated
another way, the Supreze Court held th3t a district clerk 1s not
. entitled to dcaand payment of Seo 8 as a condition precsdent to
tho delivery of the transcript for transsicaion to the appellate
Court. ThI3 case hso been follovmd in later cme3. and we dir-
cct your attention to the oam of Tuyl.or v: C3rdno6, 99 S. \5’.
411, and the Ca3e Of %xfiSla, et 31 v. m?e 011 c``JC?IiXXIy~ et 3L
74 3. Pi. tea) 145, which follo%od the tiuprem Cwrt oaoe olentloned
abme.
This opinion is not to be coustruad n3 pertaining
to fee3 or compensation that the offialal court reporter nay
lo outltled to for Utatouent of Beets.
Yours~ wry truly
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