Case Information

*1 R-644 ‘, EY ‘#%DTERAL AUSTXN 11, TExas PRICE DANIEL. ATTORNEY GEYERAL

July 25, 1947 Hon. Word A. PVfokm, Jr.,

County Lftorney ,

Croel~y Cotulty, Ro: Authority or the County Clerk to CronbbJton, Terns:, reQuirs ‘the de- :. ren48at to pay ror the tranrfsipt in a misdemeanor case in order to perroot, kis appeal. Dbar Sir: we rerer tb your letter or 3~17 3, 1947, in yru maleit the rbilm8g:

whlck

"Is a County Clerk entitled to de- URd rrom app*llant in a Qrtriul oam oost 01 the trmmrip$ )r,$Or to the rimal dlsporition or the Oaae?R

T hb o,ests l me85bd ag8inst a defendant in a 0tiLIm1 0a8.O O.Onstltuts a part Of the punisbmnt, as indiaatrd by the following articles in VornoQ’8 Code or Criminal Proc6dura :

&!tiQlO ,783. “#Nn t&O deirndant i,r only rS.reP tie Jadgmezit s&all bo that the Nate Or T61as 1900vdr of the asfOnd- ant the amount 0r

bf the *fo8oeut&b *2 Hon. Lloyd A. Wicks, Jr. - Page 2 (V-313)

8p88irY it, aad order it enroroed by the oases.”

&%icle 791r Qn eaoh oaao of pot cuni8sy fine, an exeoution may Mane ror the fine and coets, theugh a capias was issued ror the defendant; a a Oe

AI%iC~l6 7936 *Whea a defendant is oomicted of 8 misdwmrr*or and hie pun- ishimnt is assessed at a uecuniaifv rine a he shall be iamrisoied in jail for a . a surricient length of tims to discharge the full amount of the fine and costs ad- judged against hi%; a . .*

Artiele 794 previ&.es that the deietiant whe oamot pay "the rise and oosts adjudged agaim8t hii shall br required te do f#$M3@CZ&borw until said is paid.

Rx parte Carson, 159 S.W. (2d) 126, is a mis- demeanor ease which involved the question as to whether OQUrt costs constitute a part Of the puni8hmnt in a crim- ha1 case. On the point, the oeurt said:

*Appellant's contention must be sus- tained and the Aot held to be unconstitu- tional on still an&her ground. In Ex parts MaM, 39 Tex. Cr. R. 491, 46 S.W.

828, 73 Am0 St. Rep. 961, this Court, con- sistent with all ether pronouncements on the subject, has aPlhered to the view that costs iti criminal cases are assessed as a partl.pf for the conmission of the efrease oharged,"

The statutes providing for appeals in crimi& nal caees appear in Vernon's Code of Criminal Procedure, as fellows:

Article 013. *A defemlant in any crimiaal action ha8 the right of appeal under the rules hereinafter prescribed."

Article 827. “An appeal is taken

by &ring notice thereof in open oourt.

b * ,h" *3 Ron. Lloyd A. Wicks, Jr. - Page 3 (V-313)

Article 830, When the derendaat appeals in any misdenaanor oaae to the Court or Oririnal Ap9Mals, he shall, ii ha be in oastody, be committad to jail unless ;;wentar into reoognizance au prwidmd by

0 Ir ror any eauae the dareadant rail8 to enter into reoognizenae duriag the term at whioh he waa tried, but gate notice and took an appeal frem suah oonrietion, he shall be permitted to give bail aad obtaim his release rrom custody by giving, arter the expiration or suoh term of oourt, his bail bond. 0 a*

The defendant is not charged, in any lan, with any obligation or duty in regard to the tranrcript on an appeal in a oriniaal case. The judgment l gaiast M;is suspended whoa he gires notiae or appeal in open

If he enters into recognizenae, or gives an ap- peal ioad, aa permitted by Article 830, he is a free man if no tranaoript is meat by the trial oourt clerk to the clerk of the Court of Crfmiul Appeala- Why should ho pay ror the trensaript? The ‘rule is stated in Taxaa Jur- iaprudenco, Vol. 4, page 456, Seetion 316, au followa:

I) . 0 0 It is the duty or the clerk, not the appellant, to make out and forward the transcript to the appellate court, even in misdemeanor oases; and ror this reason, tha appael will not be dismissed beoauae of delay in filing the transcript in the appel- late c0urt.a

The pertinent statute8 are: Artiale 84l. *The Clerk or a Court rroa which an appeel is taken shall pre- pare aa soon a8 practicable, a transorlpt in duplicate, in wery case in whioh an ap- peal has boon taken, which shell contain all the proceedings had in the case and *4 Hon. Lloyd A. Wicks, Jr. - Page 4 (V-313)

conform to the rules governing tran- scripts in civil cases. . . and tke original to be rorwarded to the Clerk or the Court or Criminal Appeals as provided in Article 843 of the Code of Criminal Prooedure of the State or Texas , 1925 0 Provided the Clerk shall not charge for the extra copyi*

Article 043 a "As soon as pre- pared, the clerk shall forward the transcript by safe oonveyance, charges paid, inolosed in a securely seal*& envelope) dlreoted t,o the clerk of the Court or Criminal Appeal&*

Tha on@ dlstilnctio~ made by law batwaen transcripts in felbny and misdemeanor cases is that the transoript,a in feleny oases shall have prrferenor. (or- tic10 842, V&.C.P.)

The case of Bdmondsea v\. State, 6 S.W. (2d) 119, is a o&se in which the dsrendant refused to pay for the transcript and a aotion was mada to the aourt or Crim- inal Appeals to dismiss the o&se beeauae pb tra&scriptNas filed. The Court said;

"Attorneys for the state have filed a motion to dismiss this appeal based upan twtwo grounds:

s(l) Because the trensaript in this case was not riled within 90 days after the adjournment ef the oeurt at whioh conviction was had.

"(2) Beaause the tranaeript was forwarded by the attorney of appellant and not by the district clerk.

nUnder the terms of articles 843 and 845, C.C.P., it Ss mada the duty of the clerk to prepare and forward the trenacrlpt to this court. It was said in Young v. State, 80 Tex. Cr. R. 594, 21S S.W. 505:

"'The accused is not re8pOnSiblS for the reoord in criminal oases. The olerk is required to make out and for- ward the transcript to the clerk of the court. t

Hon. Lloyd A. Wicks, Jr. - Page 5 (V-313) .

*It affirmatively appears in the motion that the failure to file the tran- script in time was au0 to the demand or the district clerk for his fees for mak- ing out the transcript. Such a fee could not be demanded or legally received by the clerk in a felony aase,"

The motion to dismiss was overruled. Article 842 reads:

“Where the Court of Criminal Ap- peals awards a new trial to the defendant, the aause shall stand as it would have stood in case the new trial haa been @ant- ed by the court below."

That would not be possible if the defendant has been required to suffer a part of the punishment by paying costs im the case.

Attorney General's Opinion No. O-166-A (1939) is pertinent to your inquiry, and we enclose a copy 0r it for your information. That opinion holds, among other things, that the County Clerk cannot compel the defendant to pay the cost of the transcript, in a criminal proceed- ing, before it is sent up on appeal.

We are of the opinion that the County Clerk may not require the defendant to pay for the transcript in a misdemeanor case in order to perfect his appeal to the Court of Criminal Appeals. Ii the case is arrimel, the cost of the transcript may be colleoted from the de- fendant as other costs are collected.

The County Clerk is not authorized to require a defendant in a misdemeanor case to pay for the transcript in order to perfect his appeal to the Court of Crim- inal Appeals, If the case is affirmed, the cost of the transcript may be collecteafram *6 Hon. Lloyd A. wicks, Jr. - Page 6 (V-313)

the defendant as o$her costs are col- lected. F&noason v‘. State, 6 S,W, (2rl) 119; Article 841, V.C.S.; Opinion No. O-166-A.

Yours very truly ATTORNEY OzsNltRhz, OF TEXAS By s?f--*~+

W. T. Wil.lislr.3 Assistant WTW:mmo:wb