R-644

EY ‘#%DTERAL ‘,

PRICE DANIEL. AUSTXN 11, TExas ATTORNEY

GEYERAL July 25, 1947

Hon. Word **A.** PVfokm, Jr., CountyLftorney, Croel~y Cotulty, CronbbJton, Terns:,

:.

**Dbar Sir:**  **Ro:** Authorityor 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 

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"Is a County Clerk entitled to deURd rrom app*llant in a Qrtriul oam oost 01 the trmmrip$ )r,$Or to the rimal dlsporitionor the Oaae?R Thb o,ests l me85bd ag8inst a defendantin a 0tiLIm1 0a8.O

O.Onstltuts

a part Of the punisbmnt, as indiaatrdby the followingarticles 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&bHon. 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 exeoutionmay Mane ror the fine and coets, theugh a capiaswas issued ror the defendant;a a Oe AI%iC~l6

7936 *Whea a defendantis oomicted of 8 misdwmrr*orand hie **pun** ishimnt is assessedat a uecuniaifv rine

a

. a he shall be iamrisoiedin jail for a surricientlength of tims to discharge the full amount of the fine and costs adjudgedagainsthi%; a . .* Artiele 794 previ&.es that the deietiant whe oamot pay "the rise and oosts adjudgedagaim8t 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 involvedthe questionas to whether OQUrt costs constitutea 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, consistentwith all ether pronouncements on the subject,has aPlhered to the view that costs iti

criminalcases are assessedas a partl.pf for the conmission of the efrease oharged," The statutesprovidingfor appeals in crimi& nal caees appear in Vernon's Code of CriminalProcedure, as fellows:Article 013. *A defemlantin any crimiaalaction 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 misdenaanoroaae to the Court or OririnalAp9Mals,he shall, ii ha be in oastody,be committadto jail unless ;;wentar into **reoognizance** au prwidmd by 0 Ir ror any eauae the dareadantrail8 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 permittedto give bail aad obtaim his release rrom custodyby giving,arter the expirationor suoh term of oourt, his bail bond. 0 a* The defendantis not charged, in any lan, with any obligation or duty in **regard** to the tranrcript on an appeal in a oriniaalcase. 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 tranaoriptis meat by the trial oourt clerk to the clerk of the Court of Crfmiul Appeala- Why shouldho pay ror the trensaript? The ‘ruleis 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 transcriptto the appellate court, even in misdemeanoroases; and ror this reason, tha appael will not **be** dismissedbeoauae of delay in filing the transcriptin the appellate c0urt.a The pertinent statute8are: 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 governingtranscripts in civil cases. . . and tke originalto be rorwardedto the Clerk or the Court or CriminalAppeals as provided in Article 843 of the Code of CriminalProoedure of the State or Texas, 1925

0 Provided the Clerk shall not charge for the extra copyi* Article 043a "As soon as prepared, the clerk shall forward the transcriptby safe oonveyance,charges paid, inolosed in a securely seal*& envelope)dlreoted t,o the clerk of the **Court** or CriminalAppeal&* Tha on@ dlstilnctio~ made by law batwaen transcriptsin felbny and misdemeanorcases is that the transoript,a

in feleny oases shall have prrferenor. (ortic10 842, V&.C.P.)

The case of Bdmondseav\. State, 6 S.W. (2d) 119, is a o&se in which the dsrendantrefused to pay for the transcript

and a aotion was mada to the aourt or Criminal Appeals to dismiss the o&se beeauaepb tra&scriptNas filed. The Court said;

"Attorneysfor the statehave filed a motion to dismiss this appeal based upan twtwo

grounds: s(l) Because the trensariptin this case was not riled within 90 days after the adjournmentef the oeurt at whioh conviction

was had. "(2) Beaause the tranaeriptwas forwardedby the attorney of appellant and not by the district clerk. nUnder the terms of articles843 and 845, C.C.P., it Ss mada the duty of the clerk to prepare and forward the trenacrlptto 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 criminaloases. The olerk is required to make out and forward the transcriptto the clerk of the court. tHon. 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 demandedor legallyreceivedby the clerk in a felony aase," The motion to dismisswas overruled. Article 842 reads: “Where the Court of CriminalAppeals 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 requiredto suffer a part of the punishmentby paying costs im the case.

AttorneyGeneral'sOpinion 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 criminalproceeding, before it is sent up on appeal.

We are of the opinion that the County Clerk may not require the defendantto pay for the transcript in a misdemeanorcase in order to perfecthis appeal to the Court of CriminalAppeals. Ii the case is arrimel, the cost of the transcriptmay be colleotedfrom 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 transcriptin order to perfect his appeal to the Court of Criminal Appeals, If the case is affirmed,the cost of the transcriptmay be collecteaframHon. Lloyd A. wicks, Jr. - Page 6 (V-313)

the defendantas o$her costs are collected. F&noasonv‘. State, 6 S,W, (2rl) 119; Article 841, V.C.S.; Opinion No. O-166-A.
Yours very truly
ATTORNEY OzsNltRhz,

OF TEXAS

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W. T. Wil.lislr.3 Assistant