Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Non. Will Grew County Attorney Canadian, Texas
Dear Sir:
Opinion No. Q-146-A No: Costs of court in criminal proceedings in county court.
We have heretofore written an opinion, which was dated January 26, 1939, on the questions involved herein, but because of the importance and seriousness of the questions and because of the uncertainty of the law on these questions we have recommended the questions and does it advisable to give you this second opinion in lieu of the first opinion.
Your questions were as follows:
- Whether opate in county court may be collected before appeal is perfected?
- Whether a pauper's oath affects costs already accrued in county court, as well as the costs of appeal?
- Whether county clerk can made defendants pay costs of copying Bill of Exceptions and Transcripts before same are delivered to the defendants? We have made an exhaustive search and have been unable to find any appellate court cases on these questions; and the statutes do not deal directly with the subject.
Article 828, C. C. P., reads in part as follows:
"The effect of an appeal is to suspend and arrest all further proceeding in the case in the court in which the conviction was had until the judgment of the appellate court is
*2 Hon. Will Crowe, April 19, 1939, Page 2 received by the court from which the appeal was taken."
Artioles 841 to 845, C. C. P., inclusive, are in regard to preparation of the transcript in oriminal cases on appeal. These articles were all passed originally as part of the same act which was House Bill No. 62, First Called Session, 22nd Legislature, 1892. A few slight changes have been made in the original wording of these articles but these changes are immaterial as far as we are concerned.
These articles read as follows: "Art. 841. The Clerk of a Court from which an appeal is taken shall prepare as soon as practicable, a transcript in duplicate, in every case in which an appeal has been taken, which shall contain all the proceedings had in the case and conform to the rules governing transcripts in civil cases, the copy of such transcript to be filed in the trial court with the original papers in the case, and the original to be forwarded to the clerk of the Court of Criminal Appeals as provided in Article 843 of the Code of Criminal Procedure of the State of Texas, 1925. Provided the Clerk shall not charge for the extra copy. "Art. 842. The clerk shall prepare transcripts in felony cases that have been appealed in preference to misdemeanor cases and shall prepare transcripts in all oriminal cases appealed in preference to civil cases. "Art. 843. As soon as prepared, the clerk shall forward the transcript by safe conveyance; charges paid; inclosed in a severely sealed envelope, directed to the clerk of the Court of Criminal Appeals. "Art. 833. The clerk, immediately after the adjournment of the court at which appeals were taken, shall make out a certificate under his seal showing a list of each cause appealed. This certificate shall show the style of
*3 Hon. Will Crow, April 19, 1939, Page 3 the eause, the ofrense, the date judgment was rendered, and the date the appeal was taken; and the elork shall send it to the elork of the appellate eourt. "Art. 845. When it appears by the elork's certificate that an appeal has been taken but that the trenscript has not been received by the elork of the court of criminal appeals within the time required by law for filling transoripts in civil actions, such elork shall immediately notify the elork of the proper court that the same has not been received, and such elork without delay shall prepare and forward another trenscript as in the first instance, and notify the elork of the appellate court by letter of the fact that such trensoript has been forwarded and how and when it was forwarded."
A reading of these five articles toge ther indicates that it is mandatory that the elork prepare and forward the trenscript to the Court of Criminal Appeals, although the eost for the preparation of the trensoript has not been paid.
Although there are no appellate court eases in Texas on the question of the county elork charging in a dvanse for a trensoript in a misdemeanor ease, however, it was held in the ease, Edmondson vs. State, 6 S. W. and 119, that a district elork could not demand his fee in advance for preparing a trensoript in a felony appeal.
There are no provisions in the statutes providing for a pauper's oath in misdemenor eases on appeal.
The law is noticeably silent on the questions submitted in your inquiry and therefore, any one would be in doubt as to the eorrest answers. In passing upon a similar situation in the ease of cilley vs. State, 18 S. W. and 706, Judge Lattimore used the following language: "One desirous of having the correctness of his trial reviewed on appeal should have the prompt and willing assistance of all officials who have duties in connection with the preparation of the record in such
*4 Hon. Will Crow, April 19, 1959, Page 4 ease, and, if there be doubt as to the oxact attitude of any step in such preparation for appeal, we doom it should be resolved in favor of the acoued. This appellant seons to have aoted with promptness and diligence in trying to get his statement of facts approved and before this oourt. We are unwilling to ooncedo that he should be deprived of same when there is a doubt as to the teohnical point now raised by the state."
We think that this language is applicable in this ease and any doubt should be resolved in favor of the defendant.
You are respectfully advised that it is the opinion of this Department that the oosts of oourty court oannot be oollected until judgment of the appellate oourt is reoolved by the court from which the appeal was taken and the pauper's oath has no application in misdemeanor eases as far as an appeal is eonearned and you are furthor advised that the oourty olerk oannot demand and oompol defondant to pay oosts of bill of oxceptions and transoript before the same are delivered to the defondant.
Trusting that the foregoing answers your inquiry, we remain
Very truly yours ATTORNEY GENERAL OF TEXAS
By(Signed) Ardell Williams Ardell Williams Assistant
AW: AW APPROVED: (Signed) Gerald C. Hnann ATTORNEY GENERAL OF TEXAS