Case Information
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 'Code of Cri:aIn- 1026, 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tion repealed or sugcraedad .by th3 &option of the constitutions1 a2endrxent an&the officer's salary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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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 BTO the 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 been Silcd? of inability to pay has
“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
-... 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 any ~oc3rvico geriormed 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 *3 ’
.I.. 1.63 .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.’ *. * _ ft shall bo the duty or all OrriW8 “SOO. 5. 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 8UCh fees 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- aaxe, the amount or such roe or bility or collecting commission shall be deduoted from the salary of such Before any such deduction IS msde, the Com- officer.
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-, or ficer lo ckmrged by 1.~ with the responsibility CollcotinS foes, the Coimnissioners Court shall not in any event make ony deductions’ from the authorized salary of such 0rfdcor.9v *4 26il;
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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 lars for each felony oaee finally disqo3e of with- the following fees: Eight dol- 4 out trial or dismissed, or tried by jury v: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 eaterin Wegent In habeas corpus cusea, and eight cents for esch on0 hundred words for preparing in habeas OOT-, transcript In no event 3hGll the fe33 in habeac oor- pus canes. pus es303 exoeed eight dollars in any one case.
.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 in cnoh habeas corpus. The district judgxent clerk of any oomty shall receive fifty cents for re- cording ea’ch nooount of the sheriff.“~,
In view 0r the rOrOflOing proviulons of ,irticle 3912e, suma, you are respectfully that ~the District Clerk advised 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 by the Officers’ Salary Lil\‘f of this State insofar Counties salary b33i3 3re 00nO0ma. cou;?ty official8 vihero i?rocctlure. r\rtiolo 1026 Jma bczn superseded are couponssted on an annual those
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- case ‘upon conviction. (See Tex. Jur. mmor 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 *5 . Article J&9, Vernon98 be3tca Code of Criminal ivocodure, provides: R felony for R felony nff the defonaant 1s lndioted Is by Sine oris.., Is by Sine orisij
and upon conviction his punishment by both such by both such conflne.mnt In the county jail, or jail. or con- jail. or con- Sine andmcouSlne.3ent in the county no ~05~8 shall be pnld
victed of ZI zabderganor, by the State to any officer. All costs In such
in ;nL-dencanor oases.n C38e8 assetma shall be taxed, ana 00imtea
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- Clerk Is oo;openoated on an annual. the Sees colleoted trlct basis, 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.
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 $rovIded by Article 1364 suet be taxed, assessed and oolloctcd as in nIodo;~eanor (See the- case of Dzmte Taylor; 155 S. i’/. I 1315) caL;OS,
Vrh::t v,ac said In a.?sv:cr. to your second quest~ion k:sbOrs your third, ma sixth questions. Therefore, se deem I: u3noccssury tc discuss these questions further.
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. ’ Your fourth question 1s respectfully an&ered ?n th0 negetive. This Identical question has been po3scd upun by the ,CCu~$~of CrI@ul kppeuls ,ia the ca3cs of Youde v. &ate, v. btfit0, 6 si we (2TjTi9, 21s 3. ; Una EaXIUa8On 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 ln olvll ,ca3es to tax aad collect the fees provided for Clerk 3927, Vcmon's Atnnoteted however, .,rtIcle Civil Statutes; 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 this State Court of in the early oaso of V.’ CostLo& 7 Tax. 460. Stated m- 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 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’. the Ca3e Of %xfiSla, et 31 v. m?e 011 c~~JC?IiXXIy~ et 3L
411, and 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 reporter nay court lo outltled to for Utatouent of Beets.
Yours~ wry truly .-