Case Information
*1 51 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN *2 Honorable Oeo. OH. Shaapard, Pace 2
Judge a6 provided In hrtlclo 10347" i%nal Code, ir?aludcs a hrtlcle 47, Venon’s 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 diylided into felonies and c;isdq- xsl0anors." (Underscoring ours. 1 Under Chapter Two, Title 15, "Costa in Criminal ~. Aotlons”, Volume 3, Vernon's Code of Criminal Prooedure,
Artj,alcs 1010 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-sfxth La&la- ture, the Judioiary Appropriation Bill., 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- in exmlnlng tri- stsblcs als prhere lndlotnents are $195,000.00 $195,000.00 returned *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 $190,000.00 $190,000.00 tried *3 Honorable Geo~. H.'Sheppard, Page 3
Seotion 5 of Artlole 567b, Vernon's Penal Code provides:
"In all prosecutions under sections 1, 2, and 3 of this Aot, process shall be issued and served in the county or out of the oounty where the prosecution is pend- ins: and have the same bindinn force an& &eat as thou& the offense-being prose- cuted were a felony; and all officers lssu- ing and servlnp: such process in or out of the countr wherein the nroseoution is nend- ina. and all witnesses from within or with- out the County wherein the nroseautlon is oendina shall be compensated in like manner as though the offense were a felony in grade." (Underscoring ours.) 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,ion for 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 "oonflnement in the penitentiary for not less than two (2) nor more than ten (10.) yearsW and It follows that a third conviotlon would amount to a felony.
i?eturning to a oonsideration of Seotion 5, supra, which states that all offiaers and witnesses: "shall be compensated in 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 connection with prosecution of same are not payabla
out of the WfelonyW appropriation under the Judiciary Ap- propriation Act. It is otherwise with third convictions and convictions where 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 appropriation under House Bill No. 257, Forty-sixth Legislature, the Judiciary Appropriation Bill 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 compensating officers 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 convlctlons where the
8mount involved is fifty dollars or more, which amount.to felonies within the'statutory definition 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',s Code of Criminal Prooed- tare, reads as followsr
"The District Judge, when any such bill is .presenteU to him, shall examine the same oarefully, and~inquire into the correctness thereof, and approve the same, in whole or in part, or disapprove the entire bill, as the f'aots and law may require; and such a-p- .proval Shall 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 *5 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 immediately on 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 presented to the County
Auditor, if suoh there be, who shall carefully
examine and check the same, and shall make'what-
ever reoommendatlons he shall think proper to
be made to such Dlstriot Jude(e relating 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 transcripts on 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 convictions where the amount of money involved is fifty dollars or more under Article 567b, Vernon's Penal Code, where the ofienses are felonies and the appropriation to 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 certificates and rorms Issued by your department and consequently refrain 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 .atietaotorily, We are
Yours very truly 'A'Fl!ORNZXGENEiULOFTEXAS DS:BCi