, *

E A ORNEY GENERAL OPTEXA~

. Honorable C. 0. Murdoch CountyAttorney Menard County Menard, Texas
Dear Sir: OpinionNo. O-3078 Re: Fees due offlcera underArticle 1055,V.A.T.C.C.P. Your request for opinion has been received and carefully consideredby this department. We quote from your request as follows:

"DoesArticle 1055 in the C.C.P. provide that counties shallpay one-half of the fees of CountyAttorney, sheriff,and judge of court,when defendant in a misdemeanor case pleads 'guilty'on examining trial, and is not actually tried as in a regular trial ? Or does itprovide for the payment of one-half of the fees onlywhen the defendant is actually tried before the Judge or a jury,at a regular trial, not an examining trial, and when he pleads 'notguilty'? This article applies, I presume, to all misdemeanor cases, regardless whether in the Justice Courts or County Court?" Article 1055, Vernon's Annotated Texas Code of Criminal Procedure,reads as follows:

"The county shall not be liable to the officer and witness having costs in a miademeanor case where defendant pays his fine and costs. The county shallbe liable for one-half of the fees of the officers of the Court,when the defendant fails to pay his fine and lays his fine out in the county jail or discharges the sameby means of working such fine out on the county roads or on any countyproject. And to pay such half of coats, the County Clerk shall issue his warrant on the County Treasurer in favor of such officer to be paid out of the Road and Bridge Fund or other funds not otherwiseappropriated."Honorable C. 0. Murdoch, page 2 O-3078

Article 1065, Vernon's Annotated Texas Cede of Criminal Procedure,reads as follows:

' The following fees shall be allowed the sheriff, or other peace officerperforming the same services Inmisdemeanor cases, to be taxed against the defendant on conviction: "1

. For executing eachwarrant of arrest or capiaa, or making arrest without warrant, two dollars. "2* For summoning eachwitness, seventyfive cents.

“3

. For servingany writ not otherwise provided for, one dollar. j'4

. For taking and approving each bond, and returning the same to the court house,when necessary, one dollar and fifty cents.

“5

. For each commitment or release, one dollar.

“6

. Jury fee, In each casewhere a jury is actually summoned, one dollar. "7
. For attending a prisoner on habeas corpus,when suchprisoner, upon a hearing, has been remanded to custody, or held to bail, for eachday's attendance, four dollars.

“8. For conveyinga witness attached by him to any court out of his county, four dollars for eachday or fractionalpart thereof, and his actual necessary expensesby the nearest practicablepublic conveyance, the amount to be statedby said officer,under oath and approved by the judge of the court fromwhich the attachment issued. "9

. For conveyinga prisoner after conviction to the county jail, for eachmile, going and coming,by the nearest practicable route by private conveyance, ten cents a mile, or by railway, seven and one-half cents a mile. "10. For conveying a prisoner arrested on a warrant or capiaa issued from another county. .

Honorable C. 0. Murdoch,page 

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to the court or jailof the county from which the processwas issued,for eachmile traveledgoing and coming,by the nearestpracticable route, twelve and one-half cents. "11. For eachmile hemay be compelled to travel in executing criminalprocess and summoningor attachingwitness, seven and onehalf cents. For traveling in the service of process not otherwiseprovided for, the sum of seven and one-half cents for eachmile going and returning. If two or more persons are mentioned in the samewrit, or two or more writs in the same case,He shall charge only for the distance actually and necessarily traveled in the same.' Article 1061,Vernon's Annotated Code of Criminal Procedure, reads as follows:

'~iatrictand county attorneys shallbe allowed the following Fees in cases tried in the district or county courts, or a county court at law, to be taxed against the.defendant:
"Forevery convictionunder the laws against gaming when no appeal is taken, or when, on appeal, the judgment is affirmed, fifteen dollars. "Forevery other conviction in cases of misdemeanor,where no appeal is taken, or when on appeal the judgment is affirmed, ten dollars." Article 1068,Vernon'sAnnotated Texas Code of Criminal Procedure, reads as follows:

'If the defendantpleads guilty to a chargebefore a justice,the fee allowed the attorney representing the State shall be five dollars. The attorneywho represents the State.in a criminal action in a justice's court shall receive, for each conviction on a plea of not sullty,where no appeal is taken, ten dollars. Article 1070,Vernon's Annotated Texas Code of Criminal Procedure,reads as follows:. ,

Honorable C. 0. Murdoch,page 4 

### O-3078

"No fee shallbe allowed a district or county attorney in any casa where he is not present and representing the State, upon the trial thereof,unless he has taken some action therein for the State, or ispresent and ready to represent the State at each regular term of the court Inwhich such criminal action is pending; provided, thatwhen pleas of guilty are accepted in any justicecourt, at any other time than the regular term thereof, the county attorney shallreceive the sum of five dollars. In no case shall the county attorney, in considerationof a plea of guilty remit any part of his lawful fee." Article 1052,Vernon's Annotated Texas Code of Criminal Procedure,provides for the payment of certain fees to the County Judge and Justice of the Peace by the county, and reads as follows:

"Threedollars shall be paid by the county to the County Judge, or Judge of the Court at Law, and Two Dollars and fifty cents shall be paid by the county to the Juztlce of the Peace, for each criminal action tried and finally disposed of before him. Provided, however, that in all counties having a population of 20,000 or less, the Justice of the Peace shallreceive a trial fee of ThreeDollars. Such Judge or Justice shallpresent to the Commiszlonerz'Court of his county at a regular term thereof, a written account specifying each criminal action inwhich he claims such fee, certifiedby such Judge or Justice to be correct, and filedwith the County Clerk. The Commissioners' Court shall approve such account for such amount as they find to be correct, and order a draft to be issuedupon the CountyTreasurer in favor of such Judge or Justice for the amount so approved. Provided the Commissioners'Court shallnot pay any account ortrial fees in any case tried and inwhich an acquittal is had unless the State of Texas was represented in the trial of sala cause by the CountyAttorney, or his assistant, CriminalDistrict Attorney or his assistant, and the certificate of saidAttorney is attached to said account certifying to the fact that said causewas tried; and the State of Texas was represented, and that in his judgmentthere was sufficient evidence in said cause to demand a trial of same."Honorable C. 0. Murdoch, page 

### 5 0-3078

Trial fees are assessed under the provisions of Article 1074, Vernon’s Texas Code of Criminal Procedure, which reads as follows:

"In each case of conviction in a county court, or a County Court at Law, whether by a jury or by a Court, there shall be taxed against the defendant or against all defendants, when several are held jointly,a trial fee of Five Dollars, the same to be collectedand paid over in the samemanner as in the case of a jury fee, and in the Justice Court the trial fee shall be the sum of Four Dollars."
You are respectfullyadvised that it is the opinion of this department:

1. There is no necessity for an examiningtrial in a misdemeanor case when the defendant pleads guilty to same and the court has jurisdictionof the offense. For example, If a defendantwas charged In the justicecourt with the offense of public drunkenness and the justicehad startedan examining trial and if the defendant stated to the court that he desired to plead guilty the justice should abandon the examining trial and enter a judgmentagainst the defendant. Under such circumstancesno fees should be allowed for an examining trial. The regular fees provided by law would be payable under such circumstances.

2. The fees of the justiceof the peace and county judge for their services in the trials of misdemeanor cases, both on pleas of guilty and contested cases, are payable by the county as providedby Article 1052,V.A.T.C.C.P., supra.



### 3. If the defendant is legally convicted of a misdemeanor the sheriff and county attorney would be entitled to the fees earnedby them and It would be immaterialas to whether the defendant plead guilty or plead not guilty and contested the case, except in the case of the county attorney, who would receive a smaller fee on a plea of guilty in justice court. If the defendantwas not able to pay the fine and costs the same could be collectedas provided by Article 

### 1055,V.A.T.C.C.P., supra.

You are furtherrespectfully advised that it is the opinion of this department that Article 1055,V.A.T.C.C.P., zupra, applies to all misdemeanor convictionswhere the defendant isunable to pay the fine and costs, regardless of' whether or not the convictionwas had in the justice,County, county court at law, or district courts. See opinionNo.Honorable C. 0. Murdoch, page 

### 6 0

### -3078

O-2877 of this department, a copy of which Is enclosedherewith for your information. Very truly yours ATTORNEYGENERAL OF TEXAS

.

By s,fWm.

J. Fanning Wm. J. Fanning ,Asslstant
WJF:GP:ac ENCLOSURE

APPROVED FEB 20, 1941 s/GeraldC. Mann ATTORNEYGENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman