R-644 

EY ‘#%DTERAL ‘, 

PRICE DANIEL. 

AUSTXN 11, TExas 

ATTORNEY GEYERAL 

July 25, 1947 

Hon. Word A. PVfokm, Jr., 

County Lftorney , 

Croel~y Cotulty, 

CronbbJton, Terns:, 

:. 

Dbar Sir: 

Ro: Authority or the 

County Clerk to 

reQuirs ‘the deren48at to pay 

ror the tranrfsipt 

in a misdemeanor 

case in order to 

perroot, kis appeal. 

whlck 

we rerer tb your letter or 3~17 3, 1947, in 

yru maleit the rbilm8g: 

"Is a County Clerk entitled to deURd rrom app*llant in a Qrtriul oam 

oost 01 the trmmrip$ )r,$Or to the rimal 

dlsporition or the Oaae?R 

Thb o ,esl tme85bd s ag8inst a defendant in a 

0tiLIm1 0a8.O O.Onstltuts apart 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 asfOndant the amount 0r 

bf the *fo8oeut&b 
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 punishimnt is assessed at a uecuniaifv rine 

a . a he shall be iamrisoied in jail for 

a surricient length of tims to discharge 

the full amount of the fine and costs adjudged 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 misdemeanor ease which involved the question as to whether 

OQUrt costs constitute a part Of the puni8hmnt in a crimha1 case. On the point, the oeurt said: 

*Appellant's contention must be sustained and the Aot held to be unconstitutional 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, consistent 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" 
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 appeal 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 Juriaprudenco, 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 appellate c0urt.a 

The pertinent statute8 are: 

Artiale 84l. *The Clerk or a Court 

rroa which an appeel is taken shall prepare aa soon a8 practicable, a transorlpt 

in duplicate, in wery case in whioh an appeal has boon taken, which shell contain 

all the proceedings had in the case and 
Hon. Lloyd A. Wicks, Jr. - Page 4 (V-313) 

conform to the rules governing transcripts 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 prepared, 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. (ortic10 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 Criminal 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 forward 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 transcript in time was au0 to the demand or 

the district clerk for his fees for making 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 Appeals awards a new trial to the defendant, 

the aause shall stand as it would have 

stood in case the new trial haa been @anted 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 proceeding, 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 defendant 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 Criminal Appeals, If the case is affirmed, the 

cost of the transcript may be collecteafram 
Hon. Lloyd A. wicks, Jr. - Page 6 (V-313) 

the defendant as o$her costs are collected. 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 

WTW:mmo:wb 

By s?f--*~+ 

W. T. Wil.lislr.3 

Assistant