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**OFFICE OF**  **THE AITORNEY**  GENERAL **OF TEXAS**  **AUSTIN**
**;- c**  **“ Allll**  **,momn ”** **euc**
Bonorable George R. Shep:.,Rrd /TComptroller of PublicAccounts 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 convictionhis 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,nyofficer, All costs In such oases shallbe 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 case8where any officer la allowed feespayeble by the State for services performed eitherbefore or after indictment, including examlnlng trialsbefore magistrates and hebeas corpusproceedings,no officer shallbe entitled to fees in mozw then five oases against the same defendant;'provided, however, that where defendantsare indicted and tried separately after severance of their cesea, said officers shallbe entitled to fees in five **cases** against each of said defendants, the same se if indloted and tried aeparetelyfor separate offensesiprovided further, that **cases** inwhich the same **de** fendanthas previouslybeen Indicted, tried, and convictedprior to the date of any act or acts for which said defendant is again apprehended, indicted, and/or tried shallnot 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 shallbe entitled to the same fees allovedby 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 exaeedThree and no/100 ($3.00)Dollars, for all his services in any one case. "Sheriffsand Constables servingprocess and attending any exetaining court In the examination of any felony oaae, shallbe entitled to ruah fees as are fixedby 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 shallbe paid for summoning orHonoreble George B. Sheppard, Page 3

attachingwitnesses In the countywhere case is pending. Providedno sheriff or constable shall receive from the State any sddltionel mileage for any subsequentarrest of a doPendant in the same case, or in any other case in an examining court or in any district courtbased 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 shallhe be allowed to duplicatehis fees for mileage for making arrests,with or vlthout warrant, or when two or more vnrrants of errest or capiaaes are served or couldhave been served on the same defendant on eny one day. "Districtand County Attorneys, for attending and prosecuting any felony case before an exsmlning court, shallbe entitled to a fee of Five and no/100 (45.00)Dollars; to be paid by the State for each case prosecutedby him before such court. Such fee shall not be paid except in caseswhere the testimony of the material witnesses to the transection shallbe reduced to writing, subscribedand sworn to by said witnesses; and provided further that suchwritten testimony of all mater281 witnesses to the transact;on shallbe 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 clerkvho shell receipthim and shallkeep said testimony in the files of his office for a period of five years. ~...
"The feesmentioned 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, approvedby the Judge of the District Court, end said county Or D.:strlct

Attorney shallpresent to the District Judge the testimony transoribed in the exeminlng trial,who shall examine the same end certify thathe,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 materielwitnessen has been filed with said District Clerk, in accordancewith the preaedingperegreph, shall be attached to 

### saideccountbefore such District or County Attorney l

hall be entitled to a fee In any felony came

### formerviaeeperformedbedbrean examining court. "Only one fee shallbe allowed to any officer mentionedherein for eervlces rendered In an exeunlnlng

trial, though more than one defendant 18 joined In the complaint, or a oevereme 1s had. When defendants 

### areprooeeded against eeparately,who aouldhave 

### beenproceeded egalnst jointly,but one fee shallbe elloved in all oases thet couldhave been so joined. Ho more than one fee ahallbe allowed to srqrofficer wheremore than one case 3.8flied against 

### the emmedefetiaat for offensesgrowing 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 thisArticle have been compliedwith." Article 1027, Vernon’s Annotated Texas Code of Crlmlnal 

### Proaedure,reeds as follows:

"In 811 ceseswhere e defendant la lndloted for a felonybu$ 

### under the Indictmenthe may be convicted of a misdemeanor or a felony, and the punishmentvhlch may be assessed la a fine, jail sentenoeor both such fine and lmprleomaent in jail, the Stete shallpay no fees to any officer, exceptvhere 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 thisArticle 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 

### B88siOnlFortysecondLegisleturet Provided this shell not to examining trial fees to CFty Attorneys Criminal Dlstrlot Attorneye.gonorebleGeorge B. Shepierd, Page 5

This departmentheld in an opinionwritten 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&Zof 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 LIBe sentenaede 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 samehave &&ratbeen finally disposed of in the trial court." The ebove opinion van written prior to thepassage 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 committedby 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 onelhmorable 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 shallvhlle 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 oonvlctlonrtray be m both crimerr.A convlotlon of theft does not bar a subsequentprosecution 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 assaultvlth 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 subsequentprosecution for assault with intent to comnlt rape; and a former aoqtittal of attempt to commit rape Is not a bar to a subsequentprosecution for an attempt to commit burglaryvith intent to rape.
"In a prosecution for receiving atolen goods, a plea of former jeopardybaaed 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 ordinarilybe charged In the same count of en indictment,an exception existsvhere burfl;;y and theft are charged in the maw count. either offensehas been properly alleged and proved, a eonvlctlcn of that offense ie sustainable.

### HonorableGeorge Ii.Sheppard, Page 7



### However,lt 1s improperto as5038 punishment for both offenses in a single judgment." (Undereooringours)
The oase of Iark vs. State, 179 SW ll52,holds among other things, that under independent indictmentsconvictionsmay be had 

### forboth burglary andXiZF.~Ei out of the same transaction.

In th& matter under considerationhere there **vae** only one case ddcketedby the District Clerk i.n the Dietrlot Court against the defendant. The **“ oae6** **”** or indictment ooneleted of two counts, one count 

### ohargtngburglary and the **other** charging theft. It is true that separate lndlctments oouldhave been returnedby the

### grand juryand two cauee, bearing separate distriot court docket nwnbere, couldhave been filed against the defendant,but thisvae not done.

In mswer to your first questionyou 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, 

### aeeumPngthat ble account is correctand 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 statedalthough one feature or count of the case 

### chargeda felony, to-vlt, burglary,vhlch 

### wasnot a reducible offense and was abandoned, because the entire"case'was finally dleposed of and resulted In the conviction of defendantand 

### Ne punlsbmentwas asaeesed 

### at a ninety-dayjailsentence. Artlale 1019,V.A.T.C.C.P., supra, 

### appliesthereto,and the sheriffand justice of thepeace mist oolleot OF atten@ to oollect their fee8 by the method outlinedby Article 1019, suma.
It la our opinion that your second question 1sEonarable George B. Shep;ard, Page 8

speculativeand premature and ehouldnot be anevered by tNe department at this time.

Truet%g that this satlefactorilyanswers your in

### qulry,we am

Very truly yours ATTOHUEX GERERAL OF TBXAS



### ~wln.J. FanNiig Aeeletant

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