Hon. Merritt F. Hines

CountyAttorney Midland County Midland, Texas

Dear Sir: OpinionNo. 0-1335-A Reconsideration Re: Payment of costs in connection-with the prosecution of offensesunder Art. 567b,Vernon's Penal Code.

We are in receipt of your request for a reconslderatlon of our Opinion No. o-1335, especially lnrespect to the first question answered therein.

We quote from your letter as follows:
"Thiswill acknowledgereceipt of your above designated opinion of recent date,which, I believe, correctly states the law relating to the matters therein containedwith probably one exception, and on that Iwould appreciatea further expression.

"Iam sure you have at hand the questions I have posed, so Iwill not re-state them here.

'Inyour first paragraphbeginning on of your said opinion,you say as follows: "'Answeringyour first question, if a defendant is convicted of a felony for page 4

swindlingwith a worthless check under Article 567b,Vernon's Penal Code, it is
our opinion that costs collected from him
are payable into the State Treasury in accordancewith the provisions of Article 1018, Code of CriminalProcedure and the officers towhom costs are due look to the state for the payment of same; If
a defendant, on the other hand, is convicted of a misdemeanor for swindlingwith
a worthless check under Article 567b, those costs of the officers for lssulngand servingprocesswhich are charged against theRon. Merritt F. Hines, page 2 0-1335-A

defendant and paid by him are payable into the State Treasury,but there is no appropriationavailable for the paymentby the state of the costs of officers for issuing and servingprocess Inmisdemeanor
cases underArtFcle 567b.l'

"Now,this interpretation,ofthe statutes leaves the officers in counties that are operatlngunder the fee system in the following fix: In misdemeanorcasesunder Article 567b;Vernon's Penal Code, the officersdo the work required of them, get convictions,and the costs adjudged agalnst the defendants, collect thensame,and'then, If they follow this interpretation,pay all costs so collected into the State Treasury, knowing all the while that they are not going to be reimbursed by the State because no appropriatfonhas been made for that purpose, for nothing." and hence they do the work

Section 5 of Article 567b, Penal Code of Texas, reads
as follows:

'Inall prosecutionsunder sections 1, 2, and 3 of thisAct, process shallbe issuedand served Fn the county or out of the countywhere the prosecution ispending and have the same binding force and effect as though the offense ~JJ::~ prz$c;zE;Lwere a felony; and all officers

w ng w process in or out of the counTwherein the prosecution ispending, and all witnesses from within z without the countywherein the prosecution is pending, shall be compensated In likemanner as though the offensewere a felony in grade." (Underscoringours)
Article 1018, Code of Criminal Procedure,provides:

"When the defendant is convicted,the costs and fees gald ba t& State under this title .' mtle 15 - CriminalActions) shallb 3 charge againsthim, extentwhensentenced to death or to lmpr1sonmentfor life, and when collected shallbe paid into the State Treasury." (Paren-- thetical Insertionand underscoring ours).'

. ,Itis obvious from~theplain terms of SectLon 5 of Article 567b, above quoted, that the only officers affected thereby are officerswho issue or serve process In and out of the county ordo both.Hon. Merritt F. Blnes, page 3 0-1335-A

In our original opinionNo. O-1335we called attention to the following facts:

P,irst,that under Article 567b, Lf a defendant Is convicted of swindlingwith a worthless check, the offense is either a statutory felony or misdemeanor condltloned'upon the penalties set out in Section

## 4 of the Article.
Second, that if the amount of money Involved is $50;00 or more, or if a third conviction is obtained, then the offense is a felony, and the approprlatlon'underH-B; 257, 46th Leg., the Judiciary AppropriationBill, is available for the payment of costs by the state to officers. Thirdly, if the amount Involved is less than $50.00 on first and second convictlons, then the offense is a misdemeanor, and the appropriation for the currentbiennium provided inH.B. No. 257, supra, Fs not available for compensating officers issuing and serving process Fn or out of the countywhereln the prosecution of such a misdemeanorunder Article 567, supra, Is pending.

See our opinions Nos: O-1135 and 0-1567. Fourthlg, Itwas pointed out that under Article 567b, all prosecutions -whether felonies or misdemeanors - are placed upon the samebasis for the purpose of compensating officers issuingand servingprocess in or out of the countywherein the prosecutionsunder the Act are pending.
Furthermore, in opinion No. O-l 35, in construing Section 4 ofArticle 567b, togetherwith Aatitle 1018, Code of Criminal Procedure,we reached the conclusion that all costs collected from a defendant convicted either for a felony or a misdemeanor under Article 567b are payable into the State Treasury. In so holding,we relied upon the flnal phrase of Article 1018,~supra,which reads as follows: "andwhen collected shall be paid Into the State Treasury."

The result of such a holdingwould have an extremely harsh effect upon officers issuingand~servingprocess inmisdemeanor cases under Article 567b, because although they collected fees and costs from the defendant and turned them over to the State Treasury, there.Is no appropriation available for the payment by the State of the fees and costs oftofficers for issuingand serving process Fnmisdemeanor cases under Article. .

Hon. Merritt F. Hines, page 4 0-1335-A

567b- This Is true even though Section 5 of Article 567b states that compensation shallbe "in likemanner as though the offensewere a felony in grade." Of course, in the felony cases under the Act, the approprlatlonunder the Judiciary AppropriationBill would provide the funds for payment of fees and costsby'the State, but here also ttwould be extremely circuitous to have the costs and-fees paid.to officers forwarded to the State and then paymentmade by the State to the officers.

The questionbefore us now, however, iswhether or not it Is at all necessary for the officers Issuing and servingprocess in or out of the countyvhereln prosecutions under Article 567b are pending to forward to the State Treasury costs and fees paid to them by the convicteddefendant in such actionswhere the statehas not paid such costs or IS not In a position to make payment.

From what has been statedabove, it follows that in the case of felonies, if the officers turned said collected costs and fees over to the State Treasury, then the State would have to pay the officers in turn out of the ap~pronriation for such purpose. This makes for an unwarrantedduplication of action.

In the case of misdemeanors the officerswho turned
over to the State the fees and costs to which they were entitled would realize nothing since there is no appropriation out of which to reimburse them notwithstanding the factthat under Section 5 of Article 567b "all officers issuingand serving process In or out of the county w.hereinthe prosecutfon is pending, and all witnesses fromwithin orwithout the county wherein the prosecution is pending shallbe comnensated in like manner as though the offensewere a felony in grade? (Underscoring ours).

After carefully consideringArticle 1018, supra,we have reached the conclusion that it Is the object of this statute to make only those costs and fees already "paidby the State" a charge against the convicteddefendant for the express purpose of their payment Into the State Treasury by the officerswho collected them. Where the State has not paid out any costs and fees, but the defendant has pald them to the officers, there Is no need for the collected funds to be pald into the State Treasury. Itwas obviously the intention of the Legislature that the State pay fees and costs in felony cases onlywhere the local officersdid not collect directly from the defendant previous to~~payment by the State. Any other constructionwould recognize a right of thelocal officers to the payment of fees and costsby the convictedde-Hon. Merritt F. Hines, page 5 0-1335-A

fendantand also by the State. It is apparent that only those fees and costs previously "paidby the State" shallbe paid into the State Treasurywhen collected from the convicted defendant. Where~the State has not paid the costs and fees, there is no necessity for the monies collectedby officersgoing to the State. It follows, of course, that where fees and costshave been collected'~by the local officers that they cannot also receive payment of costs from the State.

Our conclusion Is that Article 1018, Code of Criminal Procedure, governs the disposition of fees and costs collected from a defendant in felony cases when such costs and fees have previouslybeen paid to the officersby the State. Consequently, in prosecutionsand convictionsfinmisdemeanor cases under Article 567b,where the defendant pays fees and costs to the officers, they may retain them. However, if there shouldbe tit any time an availablegeneral appropriation to pay the fees allowed officers for Issuing or servingprocess in suchmlsdemeanor cases, If the fees and costs have been paid by the State, or claims havebeen filedwith the State for such fees, said claimsapproved by the Comptroller and warrant or'deficiency certificate Issued for same, fees and costs subsequently collected from the defendant must be forwarded to the State Treasury as required by Article 1018.

We wish to call attentFon to the well-establishedrule of law that costs and fees already paid by the State cannot be collected exceptby execution as in civil suits.

Ex ParteHill, 15 3. W. 2d 14, 15; Ex Parte Byrd,-13 3. W. 2d 855; Ex Parte Smith, 8 3. W. 11 2d 139.

It has already been pointed out in this opinion that under Section 5 of Article 567b, Penal Code, the only officers affected therebyare officerswho Issue and/or serve process in or out of the county In prosecutionsunder the Act. We will
now consider the effect of this statuteupon the respective officers of the county, as follows:

First, the county attorney. The county attorney neither issuesnor servesprocess, and therefore this article does not apply to the county attorney. The county attorney is still entItled to hFs statutory fees allowable to him in cases of this character. In fee counties, the county attorney's fees inmisdemeanor cases of this character are still collectible from the defendant as a portion of the costs, and are still to be retaInedby the county attorney.. .

Hon. MerrittF. Hines, page 6 0-1335-A

Second, the justice of the peace.Although the justice of the peace Issueswarrants and-other crlmlnalprocess in misdemeanor cases of this nature, the statutesdo not allow justices of the peace any specific fee for lssulng criminal process inmisdemeanor cases. The justice of the peace is paid by the county for his services in~eachcrLmlna1 case. See Article 1052, Code of Criminal Procedure of' Texas. The four-dollar trial fee assessed against a defendant In a misdemeanor case is a fee payable to the county;and is collectibIe as a portion of the costs. See Article 1074, Code of Criminal Procedure. We are of the opinion~thatthe trial fee should &Ill be taxed as a portion of the costs in a case urder this article, and be collectedand paid to the county.

Third, sheriffs, constablesand arresting officers. This article applies to the fees of sheriffs;constables and other arresting officers for servingprocess, and includes the necessarymileage in serving such process. For example, the fees for executingwarrants of arrest, serving capias profines, serving commitments, subpoenaingwitnesses and serving other criminalprocess inworthless checkmisdemeanor cases by such officerswould clearly come within Section 5 of Article 567b, Penal Code .ofTexas. Such fees are retalned unless the State has previouslypaid them in the felony cases. The are, however, other fees which sheriffsand constables tn fee counties might retain, which would not fall into.theclassificationof "fees for serving process"; for example, fees for-takFng the approving defendant'sbail bond, fees for release, etc. Such fees as last namedwould be collectible from the defendant
as costs, and the officer entitled to same could retain such fees.
Fourth, the county judge. The county judge is entitled to no statutory fee for issuing crlmlnal process, nor does he
serve any criminal process. In fee counties, the county judge is paid a fee by the county for each criminalactton tried and finally disposed of before him. Art: 1052, C.C.P'.The county charges the defendant, provided he is convicted,a trial fee, which is taxed as a part of the costs. See Article 1074, Code of Criminal Procedure. This trial fee shouldbe collected from the defendant In case of convlctlonas a part of the costs, and shouldbe paid to the county.

Fifth, the county clerk. Section 5 of Article 567b will apply to the fees of the county clerk for Lssu%ng crimminal process. The fees collectedby the county clerk for issuing crlmlnal process In suchmisdemeanorworthless check
cases-are collectible from the defendant as a part of the costs, and may be retained in lieu of paymentby the State. Moreover, fees of the county clerk &her than for issuingHon. Kerritt F. Hines, page 7 0-1335-A

ptiocess

could be retained SeeArtIcle 1064, Code of by the‘~county clerk in fee'counties. Criminal Procedure of Texas, for a detailed llat of the fees of the county clerk.

What we have heretofore saidwith reference to the collectionand retention of feesby officers In connection with the issuanceand service of process applies to witnesses.
-. In accordancewith the above reasoning,we modify our answer to the first question of opinionRo. O-1335 to read as follows:

If a defendant Is convicted ofa felony for swiiillng with a worthless checkunder Article 567b,Vernon's Penal Code, ltia our opinion that coats collected from him are'payable Into the State Treasury as provided-underArticle 1018, Code of Criminal Procedure,where they have previouslybeen paidby the State but that the officers to whom fees and costs are due may retain them when'they are paid by the convicteddefendant and not by the State; If a defendant Is convicted of a mlsdemeanor for swindlingwith a worthless check under Article 567b, those costs of the officers for issuing and servhg process which are charged against the defendant and paid by him to said officers are not payable Into the State Treasury, there being no appropriationavailable for the payment by the State of the costs of officers for issuingand serving process in misdemeanor cases under Article 567b. .~ We wish to thank you for your splendidbrief which has aided us greatly inpassing upon thismatter.

Trusting that this satisfactorilyclarifies the situation, we are

Yours very truly

ATTORNEYGENERAL OF TEXAS

DS:ob:wc By s/Dick Stout Dick Stout Assistant APPROVED MAY 9, 1940 s/GeraldC. Mann hlTORREYGEWERAL OF TEXAS

Approved Opinion CommitteeBy s/BWB Chairman