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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 d6finitiOnOf 8 fdollyt

whn offense is an act or or&s**slon** forbltdenby ?ositlve1~7, 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-sfxthLa&lature, the JudioiaryAppropriation 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

lndlotnentsare returned $195,000.00 $195,000.00 *lQ. Exgonses of attachedtitnessea, witness fees, and nileage allowedwitnesses in felony lanes where the witness 11~0s outside the countywhere the atme is tried $190,000.00 $190,000.00HonorableGeo~. H.'Sheppard,Page 3

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

"In all prosecutionsunder sections 1, 2, and 3 of this Aot, process shall be issued and **served** in the county or out of the oountywhere the prosecutionis pendins: and have the same bindinn force an& &eat as thou& the offense-beingprosecuted were a felony; and all officers lssuing and servlnp:

such process in or out of the countrwherein the nroseoutionis nendina. and all witnesses from within or without the County wherein the nroseautlonis oendina shall be compensatedin like manner as though the offensewere a felony in grade." (Underscoring ours.) Pirst and second oonvlotionsfor 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 punishableby fine or imprisonmentin 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, punishmentis by oonfinement in penitentiary,and a felony has been oommltted.

Third conviot,ion

for a violation of Sections 1 2, or 3 regardlessof the amount of check, draft, or ord& involved inthe first two oonvlotlons, draws a penaltyoi "oonflnement

in the penitentiaryfor 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 oonsiderationof Seotion 5, supra, which states that all offiaers and witnesses: "shall be compensatedin 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 conviotionsunder 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.HonorableGeo. 8. Sheppard,Page 4

First an8 second oonvlotionsunderArticle 567b, supra,where amount of money involved is less than fifty dollars,are not felonies, and oosts and fees incurred in connection

with prosecutionof same are not payabla out of the WfelonyW appropriation under the JudiciaryAppropriation

Act. It is otherwisewith third convictions and convictions

where the amount 1nvolveU ls'flftydollars 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 convictionsare not payable by reason of Section 5, Article 667b, supra, but beoause. they are "felonleswand subjeot to Chapter Two, Title 15, Vernon's Code of CriminalProcedure.

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 CriminalProcedure 1s not availablefor'the purpose of compensatingofficers 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 misdemeanorsonly, but it is available, in all oases of a third convlotionand convlctlons where the 8mount involved is fifty dollars or more, which amount.to felonieswithin the'statutorydefinitionof Artiole,47, Vernon's Penal Code; and that there is no appropriation with tiloh to oarry out the provisionsor Section 5 oi Artiole 567b..

tare, Article 1034,Vernon',s Code of CriminalProoedreads as followsr

"The District Judge, when any such bill is .presenteU

to him, shall examine the same oarefully,and~inquireinto 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'sapproval shall soHonorableGeo. 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 oertliiedcopy from the minutes of said Court of said bill, and the action of the Judge thereon,and send same by registeredletter to the Comptroller. Provided the bill herein referred to shall before being presentedto such DistrictJudge, be first presentedto the County Auditor, if suoh there be, who shall carefully examineand 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'saccounts shall be paid at the end of said term; and all fees .$de' District Clerks for making transcriptson 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 transcriptsshall'be approvedby the Distrlot Judge as above provided, and with the saxe oondltlons, and when approved shell be recorded as Fgt,zzhe minutes of the last precedingterm of

."
It Is our further opinion that the provisions of &?ticle 1034, Vernon's Annotated Criminal Statutes,Code or Criminal Procedure, as to examinationand approval of fees in felony cases by the District Judge muld apply to those cases of third oonvlotionand 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 appropriationto pay offloersand witnessesunder the JudiciaryAppropriationBill, House Bill No. 257, Forty-sixth Legislature,is avdilable.

We have not been furnishedwith the regular felony certificatesand rorms Issued by your departmentand consequently

refrain from dealingwith that part of your requestpertaining t&them..

. .

mm-able Gso. II,

Sheppard,Page 6

Trustingthat we have answered your inquiries .atietaotorily,

We are Yours very truly

'A'Fl!ORNZXGENEiULOFTEXAS

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