Untitled Texas Attorney General Opinion ( 1939 )

51
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Oeo. OH.Shaapard, Pace 2
Judge a6 provided In hrtlclo 10347"
hrtlcle 47, Venon’s i%nal Code, ir?aludcsa
d6finitiOn Of 8 fdollyt
whn offense is an act or or&s-
slon forbltden by ?ositlve 1~7, and
to whioh lo aanexcd, on convlctlon,
ano ounlshxmt srescrlb~ in this
for whiah tho hichest penalty is
denth is aaapital felony. Offenser;
are diylidedinto felonies and c;isdq-
xsl0anors."(Underscoringours.1
Under Chapter Two, Title 15, "Costa in Criminal
~.Aotlons”, Volume 3, Vernon's Code of Criminal Prooedure,
Artj,alcs1010 thrau& 1036, a8 mended, set out tha aosts
and fees to be paid by the State to ofi’icers and witnesses.
House Bill Xo. 257 of the Forty-sfxthLa&la-
ture, the Judioiary AppropriationBill.,oontains %>e Sol-
lowing fticc3!3~
W3. Fees and cost of sheriffs,
attorneys, and alerks in
felony,aaseo,and foes of
County Juc¶gcs,County ht-
torneys, Sustloes of the
Peace, Sheriffs and Con-
stsblcs in exmlnlng tri-
als prherelndlotnentsare
returned $195,000.00 $195,000.00
*lQ. Exgonses of attached tit-
nessea, witness fees, and
nileage allowed witnesses
in felony lanes where the
witness 11~0s outside the
county where the atme is
tried $190,000.00 $190,000.00
Honorable Geo~.H.'Sheppard,Page 3
Seotion 5 of Artlole 567b, Vernon's Penal Code
provides:
"In all prosecutionsunder sections
1, 2, and 3 of this Aot, process shall be
issued and served in the county or out of
the oounty where the prosecutionis pend-
ins:and have the same bindinn force an&
&eat as thou& the offense-beingprose-
cuted were a felony; and all officers lssu-
ing and servlnp:such process in or out of
the countr wherein the nroseoutionis nend-
ina. and all witnesses from within or with-
out the County wherein the nroseautlonis
oendina shall be compensated in like manner
as though the offense were a felony in
grade." (Underscoringours.)
Pirst and second oonvlotions for a violation of
Sections 1, 2, or 3 of Article 567b, supra, in the event
the check, draft, or order 1s in an amount less than Sifiy
dollars, are punishable by fine or imprisonment in the
county jail, henoe they are misdemeanors. See Seotion 4,
"Penalties",Artiole 567b, supra.
But where the oheok, draft, or money order is in
the amount or fifty dollars or more, even upon first oon-
vi&ion, punishment is by oonfinement in penitentiary,and
a felony has been oommltted.
Third conviot,ionfor a violation of Sections 1
2, or 3 regardless of the amount of check, draft, or ord&
involved inthe first two oonvlotlons,draws a penalty oi
"oonflnementin the penitentiary for not less than two (2)
nor more than ten (10.)yearsW and It follows that a third
conviotlonwould amount to a felony.
i?eturningto a oonsiderationof Seotion 5, supra,
which states that all offiaers and witnesses: "shall be
compensatedin like manner as though the offense were a
felony in grade", it must be pointed.out that the appro-
priation for fees and oosts to be paid by the State in
felony oases would not oover misdemeanor oases such as
first and seoond conviotions under Seotions 1, 2, or 3 of
Artlole 567b, supra, where the amount of money involved
is less than fifty dollars, the provisions of Seotlon 6
about oompensatlon"in like manner as though the offense
were a relony in grade? notwithstanding.
Honorable Geo. 8. Sheppard, Page 4
First an8 second oonvlotions under Article 567b,
supra, where amount of money involved is less than fifty
dollars, are not felonies, and oosts and fees incurred
in connectionwith prosecutionof same are not payabla
out of the WfelonyW appropriationunder the Judiciary Ap-
propriationAct. It is otherwise with third convictions
and convictionswhere the amount 1nvolveU ls'flfty dollars
or more, which are felonies under Artlole 47, Vernon's
Penal Code, sup??a,beoause of the penalty they oarry. Costs
and fees in respeot to their convictions are not payable
by reason of Section 5, Article 667b, supra, but beoause.
they are "felonlesw and subjeot to Chapter Two, Title 15,
Vernon's Code of Criminal Procedure.
It is our opinion, and you are so advised, that
the appropriationunder House Bill No. 257, Forty-sixth
Legislature,the Judiciary AppropriationBill for the cu-
rent biennium, for payment by the State of aosts and fees
to officersand witnesses In felony oases, as provided in
Chapter Two, Title 15, Vernon's Code of Criminal Procedure
1s not available for'the purpose of compensatingofficers
and witnesses in similar manner ror first and second con-
victions under Article 567b, Vernon's Penal Code, where'
the amount or money involved is less then fifty dollars,
which are misdemeanors only, but it is available, in all
oases of a third convlotion and convlctlonswhere the
8mount involved is fifty dollars or more, which amount.to
felonies within the'statutorydefinition of Artiole,47,
Vernon's Penal Code; and that there is no appropriation
with tiloh to oarry out the provisions or Section 5 oi
Artiole 567b..
Article 1034, Vernon',sCode of Criminal Prooed-
tare,reads as followsr
"The District Judge, when any such bill
is .presenteUto him, shall examine the same
oarefully, and~inquireinto the correctness
thereof, and approve the same, in whole or
in part, or disapprove the entire bill, as
the f'aotsand law may require; and such a-p-
.provalShall be oonditioned only upon. and
subject to the approval of the State 6omp-
troller as provided for in Artlole 1035 of
this Code and the.Judge's approval shall so
Honorable Geo. H. Sheppard, Page 6
state therein; and such bill, with the action
of the Judge thereon, shall be entered on the
minutes of said Court; and immediatelyon the
rising of said Court, the Clerk thereof shall
make a oertliied copy from the minutes of said
Court of said bill, and the action of the Judge
thereon, and send same by registered letter to
the Comptroller. Provided the bill herein re-
ferred to shall before being presented to such
District Judge, be first presentedto the County
Auditor, if suoh there be, who shall carefully
examine and check the same, and shall make'what-
ever reoommendatlonshe shall think proper to
be made to such Dlstriot Jude(erelating to any
item or the whole bill.
"Fees due Dlstrlot Clerks for recording
sheriff's accounts shall be paid at the end of
said term; and all fees .$de'District Clerks
for making transcriptson chanw of venue and
on appeal shall be paid as soon as the service
is performed; and the Clerk18 bill for such fees.
shall not be required to show that the oase has
been finally disposed-of..Bills for fees for
suoh transcripts shall'be approved by the Distrlot
Judge as above provided, and with the saxe oondl-
tlons, and when approved shell be recorded as
Fgt,zzhe minutes of the last preceding term of
."
It Is our further opinion that the provisions of
&?ticle 1034, Vernon's Annotated Criminal Statutes, Code or
Criminal Procedure, as to examination and approval of fees
in felony cases by the District Judge muld apply to those
cases of third oonvlotion and convictionswhere the amount of
money involved is fifty dollars or more under Article 567b,
Vernon's Penal Code, where the ofienses are felonies and
the appropriationto pay offloers and witnesses under the
Judiciary Appropriation Bill, House Bill No. 257, Forty-sixth
Legislature,is avdilable.
We have not been furnished with the regular fel-
ony certificatesand rorms Issued by your department and
consequentlyrefrain from dealing with that part of your
request pertaining t&them.
.
. .
mm-able Gso. II,Sheppard,Page 6
Trusting that we have answered your inquiries
We are
.atietaotorily,
Yours very truly
'A'Fl!ORNZXGENEiULOFTEXAS
DS:BCi