Hon. Merritt F. Hines 

County Attorney 

Midland County 

Midland, Texas 

Dear Sir: Opinion No. 0-1335-A Reconsideration 

Re: Payment of costs in connection-with 

the prosecution of offenses under 

Art. 567b, Vernon's Penal Code. 

We are in receipt of your request for a reconslderatlon of our Opinion No. o-1335, especially ln respect to the 

first question answered therein. 

We quote from your letter as follows: 

"This will acknowledge receipt of your above 

designated opinion of recent date, which, I believe, correctly states the law relating to the 

matters therein contained with probably one exception, and on that I would appreciate a further expression. 

"I am sure you have at hand the questions I 

have posed, so I will not re-state them here. 

'In your first paragraph beginning on 

of your said opinion, you say as follows: 

"'Answering your first question, if a 

defendant is convicted of a felony for 

page 4 

swindling with 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 

accordance with the provisions of Article 

1018, Code of Criminal Procedure and the 

officers to whom 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 swindling with 

a worthless check under Article 567b, those 

costs of the officers for lssulng and serving process which are charged against the 
Ron. Merritt F. Hines, page 2 0-1335-A 

defendant and paid by him are payable into the State Treasury, but there is no appropriation available for the payment by 

the state of the costs of officers for issuing and serving process In misdemeanor 

cases under ArtFcle 567b.l' 

"Now, this interpretation,of the statutes 

leaves the officers in counties that are operatlng under the fee system in the following fix: 

In misdemeanor casesunder Article 567b; Vernon's 

Penal Code, the officers do the work required of 

them, get convictions, and the costs adjudged agalnst the defendants, collect then same, 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 appropriatfon has 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: 

'In all prosecutions under sections 1, 2, 

and 3 of this Act, process shall be issued and 

served Fn the county or out of the county where 

the prosecution is pending 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 is pending, 

and all witnesses from within z without the 

county wherein the prosecution is pending, shall 

be compensated In like manner as though the offense were a felony in grade." (Underscoring ours) 

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 - Criminal Actions) shall b 3 charge 

against him, extent whensentenced to death or 

to lmpr1sonment for life, and when collected 

-- shall be paid into the State Treasury." (Parenthetical Insertion and underscoring ours).' 

. 

,It is obvious from~the plain terms of SectLon 5 of 

Article 567b, above quoted, that the only officers affected 

thereby are officers who issue or serve process In and out of 

the county or do both. 
Hon. Merritt F. Blnes, page 3 0-1335-A 

In our original opinion No. O-1335 we called attention to the following facts: 

P,irst, that under Article 567b, Lf a defendant Is convicted of swindling with 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'under H-B; 257, 46th Leg., the Judiciary 

Appropriation Bill, 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 current biennium provided in H.B. No. 257, supra, 

Fs not available for compensating officers issuing 

and serving process Fn or out of the county whereln 

the prosecution of such a misdemeanor under Article 

567, supra, Is pending. 

See our opinions Nos: O-1135 and 0-1567. 

Fourthlg, It was pointed out that under Article 567b, all prosecutions - whether felonies or 

misdemeanors - are placed upon the same basis for 

the purpose of compensating officers issuing and 

serving process in or out of the county wherein the 

prosecutions under the Act are pending. 

Furthermore, in opinion No. O-l 35, in construing Section 4 of Article 567b, together with A a title 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: "and when collected shall be paid Into the State Treasury." 

The result of such a holding would have an extremely 

harsh effect upon officers issuing and ~serving process in misdemeanor 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 oft officers for 

issuing and serving process Fn misdemeanor 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 shall be "in like manner as though 

the offense were a felony in grade." Of course, in the felony 

cases under the Act, the approprlatlon under the Judiciary 

Appropriation Bill would provide the funds for payment of 

fees and costs by'the State, but here also tt would be extremely circuitous to have the costs and-fees paid. to officers 

forwarded to the State and then payment made by the State to 

the officers. 

The question before us now, however, is whether or 

not it Is at all necessary for the officers Issuing and serving process in or out of the county vhereln prosecutions under 

Article 567b are pending to forward to the State Treasury 

costs and fees paid to them by the convicted defendant in such 

actions where the state has not paid such costs or IS not In 

a position to make payment. 

From what has been stated above, 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 unwarranted duplication of action. 

In the case of misdemeanors the officers who 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 issuing and serving 

process In or out of the county w.herein the prosecutfon is 

pending, and all witnesses from within or without the county 

wherein the prosecution is pending shall be comnensated in 

like manner as though the offense were a felony in grade? 

(Underscoring ours). 

After carefully considering Article 1018, supra, we 

have reached the conclusion that it Is the object of this 

statute to make only those costs and fees already "paid by 

the State" a charge against the convicted defendant for the 

express purpose of their payment Into the State Treasury by 

the officers who 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. It was obviously the intention of the Legislature that the State pay fees and costs in 

felony cases only where the local officers did not collect 

directly from the defendant previous to~~payment by the State. 

Any other construction would recognize a right of the local 

officers to the payment of fees and costs by the convicted de- 
Hon. Merritt F. Hines, page 5 0-1335-A 

fendant and also by the State. It is apparent that only 

those fees and costs previously "paid by the State" shall be 

paid into the State Treasury when collected from the convicted defendant. Where~the State has not paid the costs 

and fees, there is no necessity for the monies collected by 

officers going 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 

previously been paid to the officers by the State. Consequently, in prosecutions and convictions fin misdemeanor cases under 

Article 567b, where the defendant pays fees and costs to the 

officers, they may retain them. However, if there should be 

tit any time an available general appropriation to pay the fees 

allowed officers for Issuing or serving process in such mlsdemeanor cases, If the fees and costs have been paid by the 

State, or claims have been filed with the State for such fees, 

said claims approved 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-established rule 

of law that costs and fees already paid by the State cannot 

be collected except by execution as in civil suits. 

Ex Parte Hill, 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 thereby are officers who Issue and/or serve process 

in or out of the county In prosecutions under the Act. We will 

now consider the effect of this statute upon the respective 

officers of the county, as follows: 

First, the county attorney. The county attorney 

neither issues nor serves process, 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 in misdemeanor cases of this character are still collectible from the defendant as a portion of the costs, and are 

still to be retaIned by the county attorney. 
. . 

Hon. Merritt F. Hines, page 6 0-1335-A 

Second, the justice of the peace. Although the justice 

of the peace Issues warrants and-other crlmlnal process in 

misdemeanor cases of this nature, the statutes do not allow 

justices of the peace any specific fee for lssulng criminal 

process in misdemeanor cases. The justice of the peace is 

paid by the county for his services in~each crLmlna1 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~that the trial fee 

should &Ill be taxed as a portion of the costs in a case urder 

this article, and be collected and paid to the county. 

Third, sheriffs, constables and arresting officers. 

This article applies to the fees of sheriffs; constables and 

other arresting officers for serving process, and includes the 

necessary mileage in serving such process. For example, the 

fees for executing warrants of arrest, serving capias profines, 

serving commitments, subpoenaing witnesses and serving other 

criminal process in worthless check misdemeanor cases by such 

officers would clearly come within Section 5 of Article 567b, 

Penal Code .of Texas. Such fees are retalned unless the State 

has previously paid them in the felony cases. The are, however, other fees which sheriffs and constables tn fee counties 

might retain, which would not fall into.the classification of 

"fees for serving process"; for example, fees for-takFng the 

approving defendant's bail 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 criminal actton 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 should be collected 

from the defendant In case of convlctlon as a part of the costs, 

and should be 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 collected by the county clerk for issuing crlmlnal process In such misdemeanor worthless check 

cases-are collectible from the defendant as a part of the 

costs, and may be retained in lieu of payment by the State. 

Moreover, fees of the county clerk &her than for issuing 
Hon. 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 said with reference to the 

collection and retention of fees by officers In connection 

with the issuance and service of process applies to witnesses. -. 

In accordance with the above reasoning, we modify our 

answer to the first question of opinion Ro. O-1335 to read as 

follows: 

If a defendant Is convicted ofa felony for swiiillng 

with a worthless check under Article 567b, Vernon's Penal Code, 

ltia our opinion that coats collected from him are'payable 

Into the State Treasury as provided-under Article 1018, Code 

of Criminal Procedure, where they have previously been paid by 

the State but that the officers to whom fees and costs are due 

may retain them when'they are paid by the convicted defendant 

and not by the State; If a defendant Is convicted of a mlsdemeanor for swindling with 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 appropriation available for the payment by the State 

of the costs of officers for issuing and serving process in 

misdemeanor cases under Article 567b. .~ 

We wish to thank you for your splendid brief which has 

aided us greatly in passing upon this matter. 

Trusting that this satisfactorily clarifies 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/Gerald C. Mann 

hlTORREYGEWERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman