February 23, 1987 

Eonorable Wiley L. Cheatham 

District Attorney 

P. 0. Box 587 

Cuero, Texas 77954 

Opinion No. JM-635 

Be: Whether a county attorney who 

handles only misdemeanor criminal 

cases is authorized to collect fees 

in certain felony cases 

Dear Mr. Cheatham: 

You inquire whether a county attorney in onc of the counties in 

your multi-county judicial district. who only handles misdemeanor 

criminal cases, is permitted to collect checks of the felony grade (in 

amounts of $750 and forgeries) under article 53.08 of the Code of 

Criminal Procedure and retain the fees provided therein for use in his 

office. 

Article 53.08 of the Code of Criminal Procedure, Acts 1979, 66th 

Leg., ch. 734, 41, at 1802, provides: 

(a) A county attorney, district attorney, or 

criminal district attorney may collect a fee if 

his office collects and processes a check or 

similar sight order if the check or similar sight 

order: 

(1) has been issued or passed in a manner 

which makes the issuance or passing an offense 

under: 

(A) Section 32.41. Penal Code: 

(B) Section 31.03, Penal Code; or 

(C) Section 31.04, Penal Code; or 

(2) has been forged under Section 32.21, Penal 

Code. 

(B) The county attorney. district attorney, or 

criminal district attorney may collect the fee 
Eonorable Wiley L. Cheatham - Page 2 (m-635) 

from any person who is a party to the offense 

described in Subsection (a) of this article. 

(c) 'fhe amount of the fee shall not exceed: 

(1) $5 if the face amount of the check or 

sight order does not exceed $10; 

(2) $10 if the face amount of the check or 

sight order is greater than $10 but does not 

exceed $100; 

(3) $30 if the face mount of the check or 

sight order is greater than $100 but does not 

exceed $300; 

(4) $50 if the face amount of the check or 

sight order is greater than $300 but does not 

exceed $500; and 

(5) $75 if the face amount of the check or 

sight order is greater than $500. 

(d) If the person from whom the fee is 

collected was a party to the offense of forgery 

under Section 32.21, Penal Code, committed by 

altering the face amount of the check or sight 

order, the face amount as altered governs for the 

purpose of determining the amount of the fee. 

(e) Fees collected under this article shall be 

deposited in the county treasury in a special fund 

to be administered by the county attorney, district attorney. or criminal district attorney. 

Expenditures from this fund shall be at the sole 

discretion of the attorney, and may be used only 

to defray the salaries and expenses of the prosecutor's office, but in no event may the county 

attorney, district attorney, or criminal district 

attorney supplement his or her own salary from 

this fund. Nothing in this Act shall be construed 

to decrease the total salaries, expenses. and 

allowances which a prosecuting attorney's office 

is receiving at the time this Act takes effect. 

You do not suggest nor do we perceive any lack of authority for a 

county attorney in one of the counties in the 24th Judicial District 

to file felony complaints, to represent the state in felony matters in 

your absence, and upon request to aid you in the prosecution of any 

p. 2874 ‘ 
a 

Honorable Wiley L. Cheatham - Page 3 (JM-635) 

case in behalf of the state in the district court. Code Grim. Proc. 

art. 2.02; Tex. Cone. art. V. 521. In fact, you relate that "for 

the last forty to sixty years and probably much longer" the county 

attorneys in the district have performed such duties, and except for 

the county in question the county attorneys are presently handling 

such functions in felony cases. You state that the county attorney in 

this county, as of January 1, 1983, has 

refused to accept any felony criminal complaints, 

process felony cases, assist with the presentation 

of felony cases to the grand jury or assist in the 

trial of felony cases. or handle any matters of a 

felony nature. 

In Attorney General Opinioa MW-241 (1980) it was stated: 

Although other public officials are specifically prohibited from undertaking 'the collection 

of any claim for debt for others,' article 

6252-24. V.T.C.S.. the addition of article 53.08 

to the Code of Criminal Procedure removes any 

doubt as to whether a county attorney, district 

attorney or criminal district attorney nay do so. 

You represent that "[IIt has been brought to my attention" that the 

county attorney in question "has apparently been accepting checks for 

collection under C.C.P.. article 53.08 which were [sic1 a felony 

offense." The thrust of your inquiv appears to be whether a county 

attorney in your multi-county judicial district forfeits the right to 

collect checks (of the felony grade) when such official refuses to 

file felony complaints or participate in any phase of felony 

prosecutions. It is our opinion that the authority for a county 

attorney in your judicial district to collect any checks (felony or 

misdemeanor) under the provisions of article 53.08 is not conditioned 

upon such official filing felony complaints or participating in any 

phese of felony prosecutions. To read such a provision into article 

53.08 would require us to impose a condition the legislature never 

considered. 

Our answer to the foregoing inquiry renders your second question 

a moot issue. In it you posed the problem of what disposition was to 

be wade of fees collected by the county attorney pursuant to article 

53.08 on checks that came within the felony classification. 

SUMMARY 

The authority for a county attorney in one of 

the counties in the 24th Judicial District to 

collect checks of the felony grade (in amounts of 

p. 2875 
Honorable Wiley L. Cheathax - Page 4 (JM-635) 

$750 and forgeries) is not forfeited by the county 

attorney's refusal to accept felony complaints, 

process felony cases, assist with the presentation 

of felony cases to the grand jury and assist in 

the trial of felony cases. 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWRR 

First Assistant Attorney General 

MARY RELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 2876