,. ( : 

/I: .’ 

OFFICE OF THE AITORNEY GENERAL OF TEXAS 

AUSTIN 

;- c “Allll 

,momn” eucBonorable George R. Shep:.,Rrd /TComptroller of Public Accounts 

j 

Austin, Texas 

Dear Sir; Qpinlon lo. O-2833 

- 

requeut as followst 

the IndicthePt of ~001. 

y jail sentsnce. 

officerar oountg 

e, end eheriff enal fees on the count 

"If the defendant ia indicted for a felony 

ad upon conviction his punishment la by fine or 

confinement in the county jail, or by both such 

fine and confinement ln the oountg jail or oonvicted of a misdemeanor, no costs shall be paid 

by the State to a,ny officer, All costs In such 

oases shall be taxed, assessed snd colleated as 

in misdemeanor csres." 
Honorable George H. Sheppard, Page 2 

Article 10198, Vernon's Annotated Texas Code of 

Criminal Procedure, reeds es follows: 

*In all felony case8 where any officer la 

allowed fees payeble by the State for services 

performed either before or after indictment, including examlnlng trials before magistrates and 

hebeas corpus proceedings, no officer shall be 

entitled to fees in mozw then five oases against 

the same defendant;' provided, however, that 

where defendants are indicted and tried separately after severance of their cesea, said officers 

shall be entitled to fees in five cases against 

each of said defendants, the same se if indloted 

and tried aeparetely for separate offensesi provided further, that cases in which the same defendant has previously been Indicted, tried, and 

convicted prior to the date of any act or acts 

for which said defendant is again apprehended, 

indicted, and/or tried shall not be computed in 

determining the number of cases against such defendant in which such officers are entitled to 

collect fees." 

Article 1020, Vernon's Annotated Texas Code of 

Crlmlnal Proaedure, reeds as followa: 

"In each case where a County Judge or a 

Justice of the Peace shsll sit as an examining 

court in e felony case, they shall be entitled to 

the same fees alloved by lav for siailsr services 

in misdemeanor cases to Justices of the Peace, and 

ten cents for each one hundred vords for vrltlng 

dovn the testimony, to be paid by the State, not 

to exaeed Three and no/100 ($3.00) Dollars, for all his 

services in any one case. 

"Sheriffs and Constables serving process and 

attending any exetaining court In the examination 

of any felony oaae, shall be entitled to ruah fees 

as are fixed by law for similar services in miademeanor ceses in County Court to be 

State, not to exceed Four and no/l00 p@?OgJ %- 

lara in any one case, and mileage actually and 

necessarily traveled in going to the place of arrest, and for conveying the prisoner or prisoners 

to jell aa provided in Articles 1029 and 1930, Code 

of Criminal Proosdure, a8 the facts may be, but no 

mileage whatever shall be paid for summoning or 
Honoreble George B. Sheppard, Page 3 

attaching witnesses In the county where case is 

pending. Provided no sheriff or constable shall 

receive from the State any sddltionel mileage 

for any subsequent arrest of a doPendant in the 

same case, or in any other case in an examining 

court or in any district court based upon the 

8ame charge or upon the same criminal act, or 

growing out of the same crlmlnsl transaction, 

whether the errest is lnade with or without a 

warrant, or before or after indictment, and in 

no event shall he be allowed to duplicate his 

fees for mileage for making arrests, with or 

vlthout warrant, or when two or more vnrrants 

of errest or capiaaes are served or could have 

been served on the same defendant on eny one day. 

"District and County Attorneys, for attending and prosecuting any felony case before an 

exsmlning court, shall be entitled to a fee of 

Five and no/100 (45.00) Dollars; to be paid by 

the State for each case prosecuted by him before such court. Such fee shall not be paid 

except in cases where the testimony of the material witnesses to the transection shall be reduced to writing, subscribed and sworn to by said 

witnesses; and provided further that such written 

testimony of all mater281 witnesses to the transact;on shall be delivered to the District Clerk 

under seal, vho shall deliver the dame to the 

foreman of the grand jury and take his receipt 

therefor. Such foreman shall, on or before the 

adjournment of the grand jury, return the same 

to the clerk vho shell receipt him and shall keep 

said testimony in the files of his office for a 

period of five years. 

~... 

"The fees mentioned in this Article shall 

become due and payable only after the indictment 

of the defendant for an offense based upon or 

growing out of the charge filed in the exaning 

court and upon an itemized account, SVOIQ to by 

the officers claiming suuh fees, approved by the 

Judge of the District Court, end said county Or 

D.:strlct Attorney shall present to the District 

Judge the testimony transoribed in the exeminlng 

trial, who shall examine the same end certify 

that he,hes done so and that he Plnde the testi- 
Honorab3o George II. Sheppard, Page 4 

many of one or more witnessem to be materlal~ 

and provided further that a certificate from the 

District Clerk, showing that the written testlmany of the materiel witnessen has been filed 

with said District Clerk, in accordance with 

the preaeding peregreph, shall be attached to 

said eccount before such District or County 

Attorney l hall be entitled to a fee In any felony 

came for merviaee performed bedbre an examining 

court. 

"Only one fee shall be allowed to any officer mentioned herein for eervlces rendered In an 

exeunlnlng trial, though more than one defendant 

18 joined In the complaint, or a oevereme 1s 

had. When defendants are prooeeded against eeparately, who aould have been proceeded egalnst 

jointly, but one fee shall be elloved in all oases 

thet could have been so joined. Ho more than one 

fee ahall be allowed to srqr officer where more 

than one case 3.8 flied against the emme defetiaat 

for offenses growing out of the same criminal act 

or tranaactlon. The account of the offlasr and 

the approval of the Dlstrlct Judge must afflrmatlvely show that t&e provlaions of this Article 

have been complied with." 

Article 1027, Vernon’s Annotated Texas Code of 

Crlmlnal Proaedure, reeds as follows: 

"In 811 ceses where e defendant la lndloted 

for a felony bu$ under the Indictment he may be 

convicted of a misdemeanor or a felony, and the 

punishment vhlch may be assessed la a fine, jail 

sentenoe or both such fine and lmprleomaent in 

jail, the Stete shall pay no fees to any officer, 

except vhere the defendant is Indicted for the 

offense of murder, until the case has been flnally disposed of in the trlel court. Provided the 

provisions of this Article shall not be construed 

es affecting in sny vay the provisions of Article 

1019, Code of Criminal Procedure, ea wended by 

Chapter 205, General Laws, Regular B88siOnl Fortysecond Legisleturet Provided this shell not 

to examining trial fees to CFty Attorneys 

Criminal Dlstrlot Attorneye. 
gonoreble George B. Shepierd, Page 5 

This department held in an opinion written by 

Honorable A.R. Stout, Assistant Attorney Generel dated 

Bovember 23, 1933, recorded in Vol. 352, pages d-83, lnclueive, Letter Opinions of the Attorney Goner&Z of Texea, 

a8 follova: 

"(1). County ettorneya &... ere entitled 

to their exa&ning trial fees, after indictment, 

in all felony cases, awmmlng that their accounts 

are correct and duly epproved. 

“(2). In all murder cases, and other felony 

ceses, where the onl punishment that can be eaaessed LIB e sentenae de pen.i~te&ierg, the officers 

are entitled to their fees, r dlctnleat, just 

as they have been In the past. 

“(3). In all oases, hovever, where a defendant 

Is indicted for a felony, but under the law for 

which he has been indicted, he may be conviated 

of a misdemeanor, or the punishment assessed a$ainst 

him may be e fine or both fine and jell sentenoe, 

that is, less than a felony, the State may not pay 

any money to the maglstrete, clerk or peace offlcer for their services rendered In the examining 

trial of such cnses, until the same have &&rat been 

finally disposed of in the trial court." 

The ebove opinion van written prior to the passage 

of the Officers' Salary Lev and epplled to officers operating 

under the fee system. 

We understand that Hamilton County, Texas, operates 

under the fee system. 

Sections 111, 112 and 113, Burglary, 7 Texas Jurlsprudence, pages 869, 8'70 and 871, read as follovs: 

,,,,~l~;~,~~~~.~~ty of Burglary end Other 

. - According to the rule 

of the common law, the offenses of burglary and 

theft, if committed by the same transaction, ere 

merged! and hence a prosecution for one is held 

to be e bar to e prosecution for the other. This 

rule has been ebrogated in Texas. 

'IIf a house be entered in such 

manner es to be burglary, and the one 
lhmorable ffeoge Ii. Sheppard, Page 6 

guilty of much buqlary ahall after such 

entry commit any other offenae, he &all 

be punished for burglary and al80 for 

whatever other offense is mo comltted.' 

"'If the burglary van affected for 

the purpose of committing one felony, 

and the one guilty thereof shall vhlle in 

the house comait another felony, he shall 

be punIshable for any felony so ooarsaitted 

an well aa for the burglary.8 

"ill2. Second Proseoutlon. - Within the purview 

of the rule that a person may not lawfully be tried 

a second time for the same offeme, the orlmea of 

burglary and theft, although arlaing out of a ringle transaction, are separate and distinot. Under 

independent Indictments oonvlctlonr tray be m 

both crimerr. A convlotlon of theft does not bar a 

subsequent prosecution fop the burglary3 and a previous prosecution for burglary does not prevent a 

prosecution for theft of property alleged to have 

been stolen in the same transaction. The entry is 

one offense, and any offense oorrmitted thereafter 

my be prosecuted a8 another orlme. Where it appear8 

that ths defendant assaulted the oooupaut of the 

house and then burglarized the bulldlng, a proxecution for assault vlth intent to bommlt burglary is 

not barred by a former oonvlctlon of bwglary. 

Again an acquittal of a charge of burglary vith lntent to commit rape Is no bar to a subsequent prosecution for assault with intent to comnlt rape; and 

a former aoqtittal of attempt to commit rape Is not 

a bar to a subsequent prosecution for an attempt 

to commit burglary vith intent to rape. 

"In a prosecution for receiving atolen goods, 

a plea of former jeopardy baaed on a previous aoquLtta1 of a charge of burglary is properly stioken 

out. 

“1113. Soinder of Burglary and Offenee Committed After Entry. - While two distinct offenses 

may not ordinarily be charged In the same count of 

en indictment, an exception exists vhere burfl;;y 

and theft are charged in the maw count. 

either offense has been properly alleged and proved, a eonvlctlcn of that offense ie sustainable. 
Honorable George Ii. Sheppard, Page 7 

However, lt 1s improper to as5038 punishment 

for both offenses in a single judgment." 

(Undereooring ours) 

The oase of Iark vs. State, 179 SW ll52, holds 

among other things, that under independent indictments convictions may be had for both burglary andXiZF.~Ei out 

of the same transaction. 

In th& matter under consideration here there vae 

only one case ddcketed by the District Clerk i.n the Dietrlot 

Court against the defendant. The “oae6” or indictment ooneleted of two counts, one count ohargtng burglary and the 

other charging theft. It is true that separate lndlctments 

oould have been returned by the grand jury and two cauee, 

bearing separate distriot court docket nwnbere, could have 

been filed against the defendant, but this vae not done. 

In mswer to your first question you are reapeotfully advised as followsr 

(a) Article 1027, V.A.T.C.C.=., euprn, doea not affeat the fees of the county attorney, and under the facta 

stated the county attorney ir entitled to one esamlnfng trial 

fee, aeeumPng that ble account is correct and duly approved. 

(b) Article 1027, V.A.T.C.C.P., eupra, applies to 

the juetloe of the geaoe~and sheriff, and they are not entitled 

to any exaalnlng trial fee from the State under *he facts 

stated although one feature or count of the case charged a 

felony, to-vlt, burglary, vhlch was not a reducible offense 

and was abandoned, because the entire"case' was finally dleposed of and resulted In the conviction of defendant and Ne 

punlsbment was asaeesed at a ninety-day jail sentence. Artlale 1019, V.A.T.C.C.P., supra, applies thereto, and the 

sheriff and justice of the peace mist oolleot OF atten@ to 

oollect their fee8 by the method outlined by Article 1019, 

suma. 

It la our opinion that your second question 1s 
Eonarable George B. Shep;ard, Page 8 

speculative and premature and ehould not be anevered by 

tNe department at this time. 

Truet%g that this satlefactorily answers your inqulry,we am 

Very truly yours 

ATTOHUEX GERERAL OF TBXAS 

~wln. J. FanNiig 

Aeeletant 

WJFIAW