51 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 
Honorable Oeo. OH. Shaapard, Pace 2 

Judge a6 provided In hrtlclo 10347" 

hrtlcle 47, Venon’s i%nal Code, ir?aludcs a 

d6finitiOn Of 8 fdollyt 

whn offense is an act or or&sslon forbltden by ?ositlve 1~7, and 

to whioh lo aanexcd, on convlctlon, 

ano ounlshxmt srescrlb~ in this 

for whiah tho hichest penalty is 

denth is aaapital felony. Offenser; 

are diylided into felonies and c;isdqxsl0anors." (Underscoring ours. 1 

Under Chapter Two, Title 15, "Costa in Criminal 

~. Aotlons”, Volume 3, Vernon's Code of Criminal Prooedure, 

Artj,alcs 1010 thrau& 1036, a8 mended, set out tha aosts 

and fees to be paid by the State to ofi’icers and witnesses. 

House Bill Xo. 257 of the Forty-sfxth La&lature, the Judioiary Appropriation Bill., oontains %>e Sollowing fticc3!3~ 

W3. Fees and cost of sheriffs, 

attorneys, and alerks in 

felony,aaseo, and foes of 

County Juc¶gcs, County httorneys, Sustloes of the 

Peace, Sheriffs and Constsblcs in exmlnlng trials prhere lndlotnents are 

returned $195,000.00 $195,000.00 

*lQ. Exgonses of attached titnessea, witness fees, and 

nileage allowed witnesses 

in felony lanes where the 

witness 11~0s outside the 

county where the atme is 

tried $190,000.00 $190,000.00 
Honorable Geo~. H.'Sheppard, Page 3 

provides: 

Seotion 5 of Artlole 567b, Vernon's Penal Code 

"In all prosecutions under sections 

1, 2, and 3 of this Aot, process shall be 

issued and served in the county or out of 

the oounty where the prosecution is pendins: and have the same bindinn force an& 

&eat as thou& the offense-being prosecuted were a felony; and all officers lssuing and servlnp: such process in or out of 

the countr wherein the nroseoution is nendina. and all witnesses from within or without the County wherein the nroseautlon is 

oendina shall be compensated in like manner 

as though the offense were a felony in 

grade." (Underscoring ours.) 

Pirst and second oonvlotions for a violation of 

Sections 1, 2, or 3 of Article 567b, supra, in the event 

the check, draft, or order 1s in an amount less than Sifiy 

dollars, are punishable by fine or imprisonment in the 

county jail, henoe they are misdemeanors. 

"Penalties", Artiole 567b, supra. 

See Seotion 4, 

But where the oheok, draft, or money order is in 

the amount or fifty dollars or more, even upon first oonvi&ion, punishment is by oonfinement in penitentiary, and 

a felony has been oommltted. 

Third conviot,ion for a violation of Sections 1 

2, or 3 regardless of the amount of check, draft, or ord& 

involved inthe first two oonvlotlons, draws a penalty oi 

"oonflnement in the penitentiary for not less than two (2) 

nor more than ten (10.) yearsW and It follows that a third 

conviotlon would amount to a felony. 

i?eturning to a oonsideration of Seotion 5, supra, 

which states that all offiaers and witnesses: "shall be 

compensated in like manner as though the offense were a 

felony in grade", it must be pointed. out that the appropriation for fees and oosts to be paid by the State in 

felony oases would not oover misdemeanor oases such as 

first and seoond conviotions under Seotions 1, 2, or 3 of 

Artlole 567b, supra, where the amount of money involved 

is less than fifty dollars, the provisions of Seotlon 6 

about oompensatlon "in like manner as though the offense 

were a relony in grade? notwithstanding. 
Honorable Geo. 8. Sheppard, Page 4 

First an8 second oonvlotions under Article 567b, 

supra, where amount of money involved is less than fifty 

dollars, are not felonies, and oosts and fees incurred 

in connection with prosecution of same are not payabla 

out of the WfelonyW appropriation under the Judiciary Appropriation Act. It is otherwise with third convictions 

and convictions where the amount 1nvolveU ls'flfty dollars 

or more, which are felonies under Artlole 47, Vernon's 

Penal Code, sup??a, beoause of the penalty they oarry. Costs 

and fees in respeot to their convictions are not payable 

by reason of Section 5, Article 667b, supra, but beoause. 

they are "felonlesw and subjeot to Chapter Two, Title 15, 

Vernon's Code of Criminal Procedure. 

It is our opinion, and you are so advised, that 

the appropriation under House Bill No. 257, Forty-sixth 

Legislature, the Judiciary Appropriation Bill for the curent biennium, for payment by the State of aosts and fees 

to officersand witnesses In felony oases, as provided in 

Chapter Two, Title 15, Vernon's Code of Criminal Procedure 

1s not available for'the purpose of compensating officers 

and witnesses in similar manner ror first and second convictions under Article 567b, Vernon's Penal Code, where' 

the amount or money involved is less then fifty dollars, 

which are misdemeanors only, but it is available, in all 

oases of a third convlotion and convlctlons where the 

8mount involved is fifty dollars or more, which amount.to 

felonies within the'statutory definition of Artiole,47, 

Vernon's Penal Code; and that there is no appropriation 

with tiloh to oarry out the provisions or Section 5 oi 

Artiole 567b.. 

tare, 

Article 1034, Vernon',s Code of Criminal Prooedreads as followsr 

"The District Judge, when any such bill 

is .presenteU to him, shall examine the same 

oarefully, and~inquire into the correctness 

thereof, and approve the same, in whole or 

in part, or disapprove the entire bill, as 

the f'aots and law may require; and such a-p- 

.proval Shall be oonditioned only upon. and 

subject to the approval of the State 6omptroller as provided for in Artlole 1035 of 

this Code and the.Judge's approval shall so 
Honorable Geo. H. Sheppard, Page 6 

state therein; and such bill, with the action 

of the Judge thereon, shall be entered on the 

minutes of said Court; and immediately on the 

rising of said Court, the Clerk thereof shall 

make a oertliied copy from the minutes of said 

Court of said bill, and the action of the Judge 

thereon, and send same by registered letter to 

the Comptroller. Provided the bill herein referred to shall before being presented to such 

District Judge, be first presented to the County 

Auditor, if suoh there be, who shall carefully 

examine and check the same, and shall make'whatever reoommendatlons he shall think proper to 

be made to such Dlstriot Jude(e relating to any 

item or the whole bill. 

"Fees due Dlstrlot Clerks for recording 

sheriff's accounts shall be paid at the end of 

said term; and all fees .$de' District Clerks 

for making transcripts on chanw of venue and 

on appeal shall be paid as soon as the service 

is performed; and the Clerk18 bill for such fees. 

shall not be required to show that the oase has 

been finally disposed-of.. Bills for fees for 

suoh transcripts shall'be approved by the Distrlot 

Judge as above provided, and with the saxe oondltlons, and when approved shell be recorded as 

Fgt,zzhe minutes of the last preceding term of 

." 

It Is our further opinion that the provisions of 

&?ticle 1034, Vernon's Annotated Criminal Statutes, Code or 

Criminal Procedure, as to examination and approval of fees 

in felony cases by the District Judge muld apply to those 

cases of third oonvlotion and convictions where the amount of 

money involved is fifty dollars or more under Article 567b, 

Vernon's Penal Code, where the ofienses are felonies and 

the appropriation to pay offloers and witnesses under the 

Judiciary Appropriation Bill, House Bill No. 257, Forty-sixth 

Legislature, is avdilable. 

We have not been furnished with the regular felony certificates and rorms Issued by your department and 

consequently refrain from dealing with that part of your 

request pertaining t&them. 
. 

. . 

mm-able Gso. II, Sheppard, Page 6 

Trusting that we have answered your inquiries 

.atietaotorily, We are 

Yours very truly 

'A'Fl!ORNZXGENEiULOFTEXAS 

DS:BCi