February 23, 1987

EonorableWileyL. Cheatham DistrictAttorney P. 0. Box 587 Cuero,Texas 77954 OpinionNo. JM-635
Be: Whether a countyattorneywho handles only misdemeanor criminal cases is authorizedto collect fees in certain felonycases Dear Mr. Cheatham:
You inquirewhether a county attorney in onc of the counties in your multi-county judicial district. who only handles misdemeanor criminalcases, ispermitted to collectchecks of the felonygrade (in amounts of $750 and forgeries) under article 53.08 of the Code of CriminalProcedure and retain the feesprovided therein foruse inhis office. Article 53.08 of the Code of CriminalProcedure,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.PenalCode: (B) Section 31.03,Penal Code; or (C) Section 31.04,Penal Code; or (2) has been forgedunder Section 32.21,Penal Code. (B) The countyattorney.districtattorney,or criminal district attorney may collect the feeEonorableWiley L. Cheatham - Page 2 (m-635)

from any person who is a party to the offense described in Subsection (a)of this article. (c) 'fheamount of the fee shallnot exceed: (1) $5 if the face amount of the check or sight orderdoes 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 collectedunder this article shallbe 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 thisAct shallbe construed to decrease the total salaries, expenses. and allowances which a prosecuting attorney's office is receiving at the time thisAct takes effect.
You do not suggestnor 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 felonymatters in your absence, and upon request to aid you in the prosecution of any

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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 functionsin felony cases. You state that the countyattorney in this county,as of January 1, 1983,has

refused to accept any felony criminal complaints, process felonycases,assistwith thepresentation of felony cases to the grand jury or assist in the trial of felony cases. or handle anymatters of a felonynature.
InAttorneyGeneralOpinioaMW-241 (1980)itwas 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 attorneyor criminaldistrictattorneynay do so. You represent that "[IIt has been brought to my attention" that the county attorney in question "has apparentlybeen 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 yourmulti-county judicialdistrict 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 rendersyour second question a moot issue. In it you posed theproblem of what dispositionwas to be wade of fees collectedby the county attorney pursuant to article 53.08 on checks that camewithin the felonyclassification.
SUMMARY The authorityfor a county attorney in one of the counties in the 24th Judicial District to collect checks of the felony grade (in amounts of

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$750and forgeries) is not forfeitedby the county attorney's refusal to accept felony complaints, process felony cases, assistwith thepresentation of felony cases to the grand jury and assist in the trial of felony cases.

JIM MATTOX AttorneyGeneral of Texas JACK HIGHTOWRR First AssistantAttorney General
MARY RELLER ExecutiveAssistantAttorney General
RICK GILPIN Chairman,Opinion Committee Preparedby Tom G. Davis AssistantAttorney General

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