GENERAL



## TEXEATTOECNEY

OF TEXAS ~-882

PRICE DANIEL 

### AUSTIN 11. 'I-EXAS
ATT0RNEYGENERAL
November 3, 1947

Eon. R. Y. King County Attorney Donley County Clarendon, Texes Opinion No. V-421
Re: Disposition to be made of fees of the county attorneywhich eccruca during the interimbetween the aesth of the

Deer Sir: countyattorney and the appointment ofhis succeasor.

We refer to your letter of Ootober 17, 1947, which reads In pert as follows:

"On October 3rd. the ooupty attorney of Don&County died; on October 13th. the commissioners' court appointed another county attorney leaving ten dars without eny county attorney. On October 7th the sheriffarrested twomen, one for drunkenness in a public place, and one for driving e motor vehlolewhile under the influence of intoxicating liquor;both men plea guilty and peid their fines and in both cases a fee wea collected for the county sttorney. In the case of drunkenness In 8 public plebe the sheriff alone signed the complelnt. In the ceae of arivingwhile intoxicated, the Distriot Attorney signed the lnformstionbut he did not llve in the county and WRS not in the county at the time of the trial.
"Towhom do those attorneys fees belong? To the District Attorney? To the CountyAttorney? To the county ss general funds? Qr should theybe returned to,,the defendant as fees improperly collected? With reference ti, your question in the case where the sheriffdone signed the complaintend the county attorney tookno pert therein, thisDepsrtmentheld in Opinion No. O-4599,where the county attorneywas in the tamed forces, thet:-

Hon. R. Y King - Page 2 (V-421)

"2. If the county sttorneyhas not tsken any ection in sucha cese end is not present end reedy to represent the Stete at A regular term of the justice court end a defends& pleads guilty at suchregular term the countyattorneywould not be entitled to the fee. Nor would the countybe entitled to the fee. If no fee is due the county attorney it shouldnot be charged agsinst the defendent." Therefore, since therewss no cotity ettorney of the county on October 7, nor hed one taken any part whatsoever in the case, end under the foregoing opinion, it is the opinion of this Depe,rtment that the Defendant couldnot legellyhave been charged a fee for the county attorney and the $10.00 allowed the county attorneyunder Article 1061, C.C.P ,and the ten percent of the fine allowed under Article 950, C.C.P., shouldbe returned to the defendant in said cese.

In the case of drivingwhile intoxiceted, the district attorney signed the inform&ion, which may legelly be done. See Cody v State, 47 S W (28) 297.Donley County Is Included in a district Inwhich there is a district ettorney end Article 1061, C.C.P., is es follows:

"Districtand county ettornegs shall be allowed the following fees in cases tried in the district or county courts, or a county court et law, to be taxedagainst the aefende.nt: "For every convictionunder the lsws ageinst gamingwhen no eppeal is taken, or when, on appeal, the judgment is affirmed, fifteen dollars. 'For every other convictionin cases of misdemeenor, where no appeel is taken, 

### or when on eppeal the judgment is affirmed, ten aollers." Therefore,under the aboveArticle end the oplnion No. 

### O-4599. It is the opinion of thisDepartment thst the district ettorney eerned the $10.00 fee as well as the t&n per cent commissionin this cease.. -



### Hon.R.Y.mag - 

### Page3 (V-421)

"$t aMU be the, but



### Artiolr,Js861,

V.Q.I., provide8

that 

### thedirtrlct attoraoy 

## shall be 00,LI

### salary brrlr. Seotlon 

### 3OS *alO Aot~pawidar 

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### fa, 00n~88i8n3 8~ +- sistrlot whit& maybe raaard e.ob 

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### bepaid iAt thr &3untJ 

### @oaifMf of the OO~Dtkes in whioh such,i@Os,am 

### l a?@ed .fos the 'aooouiat or the propez?

### fund.’ spinion of

### Th+Morr * la vmr of the 

### fomgolng~, it l,r ,the ,,

thla. 

### Departmat that the. dirtrict attitfiwy ctmaot. pem~onally retain such fee 

### ad aomissgiaa byt should cgllrot the 

### mad aw ,pay,it into ~theoountf 

### troar.- uryof yew? oounty. ‘,

DalrY bectlon 24 of Artictd SOP our State Censtltutlon, said money shouU be .credltetl to the Road ati Brfage, Fu@l of your cbuzity. .(Attorney Qeneral OpS.aion lo. O-6940)

Upon the death of the county sttorney and before the sppolntment of his successox?, attorneys fees, collected in the county oourt upon’ 8,plea of guilty should be,.returnod to the defendent, If the sheriff was thi’p~i?soa who signed the conplaint. 

### bre the oounti attorney I,# Urrd atid the district attorney sl,yed the intonation in a case in county m3z.r and the d?fsnaant, pLeaas guilty, tha atitornoJ’8 gee arid odnanls- .sion should be. ooLlqcte4 

### an6pal4 into theHon. R. Y. King Page 4 (V-421)

county treesmy to the credit of the and Bridge Fund of the county. Sec. Art. 3912e; Sections 1 and 3 of Art. V.C.S. Very trulyyours ATTORNEY GENERAL OF TEXAS

BA:djm BY &X$fiUQkLe, Bruce Allen Asslstent

APPROVED:

ATTORNEY GENERAL