AUSTIN

HonorsbleC-ball K. iTord County,Attoraey San 3abn County 8611 Saha, Texae

Deer Slrr

Your recent re opon.thsquestionsa8 ar &an of this Departcrent has been received.

tin% liquor in Sm ;ic4ba fined .$lOO.OO

and costs..By

prior to the first ot January,durthe formr County Attorney, the deo the County Clerk +75.00 leaving ~,44.00 whioh has been peld into tt:c since I went Into office January lat. The questionarises as to who is entitled to the $lO,oo fee end the $lO.OO ~0ItXrdBSiOn due the CoUty Attorney.EonoribleCampbellK. Ford, Fa.ge 2

_ “Under a rsling to H. E, Beaaley, County Auditor,,

Collins County, January 16, 1940, opinion $1792, it is as follows: W:421ere onlr 8 part OP the f'ine and costs as-6 collected,the mOneY eMl.~ot~d should go first to the payzent Of the oost and the balance, if any, to the amount or the sine.* Er. Xalters and I agree that he is entitled to the $10.00 fee, The QueStion is whether or not he is entitled to the $10.00 comlsslon on the ~100.00 fine? olaizm It is due him because the $,75.00 paid ge
before he went~

out oi officewes sufficientto oover the fees and comlssign. Only 444.00 has been paid since be went out of offioe on ~tbe Sine. Does he get the full Z~lO.00cornCdSSiOn, or iS be entitled t0 the ten per cent. Of the fine that was paid in and 813. I entitled to ten per csnt of the $44.00 that has been paia Binoe I Went i.n? The clerk is holding the *lo.00 commissionaubJeot to your ruling.
"Further su5gestlogthat during ?Zr.galter'a term of offioe several cams were appealed from oonviotionsin the County Court to the Court of C+.inal Appeals end scple of those oases will be aftfimed. When the mndats is returned Er. Kalterswill insist that he is entitled to the fees and comiasions under thoae con- * riotions that are aflimiedand we want, to know %X' he la correct about it or will I be entitled to the fee and com.%ssionas his suoces8orunder the prcviaioneof the Statute? hrt. 335, 'Bern. Ann. St., Vol. 1, c. 527, which was construed in the CQSB of Flint v. Jones County, 5C 5X, 203, wherein it iS held *The CountyAttcrneywho iS ln officewhen the COlleCtiOA iS SCtuelly-de fa entitled to the c03~;iSSionS no;r,ed in thiS artic1.e

~3 fees in his office, and not the One who prosecuted the suit to jud&raent but whose tern of office expired before the collection
was made.* Also und.er decision in 66 St*, pe 48,BonorableCampbell K. Ford, Fage 3

relyingupon this etatute.endthese two construotionsthereof. %X11 I~be entitledas the incumbentofficer to the rees and commissions oollectedunder these convictionsduring Yr. '#alter's

term of offioe but affirmed and collected cnder ny tern of office? Lr. ?;alters claims thst this article and two statutesdo not d6aide thia questionand that he will be entitled to all See8 and coqrmiesionncollected on these oases.
We would like at your earliest convenienoe to have your opinion on these questions.*

We do not think that Article 335, Vernon*8Annotated Civil Statutes is eDplIcableto the question lnvoivingthe oomnlsaioneonxines. etc.. but the same is fiovsrned br biticle 950, 0 Code of CriminalFroaedure,which re&s as Soliower

"The District or County Attorney shall be entitled to ten per oent OS all Sines, Sorfoituras, or moneys collectedSor the State or County,upon judgmentsreoovered by him; and the clerk oS the oourt In which said judgmnts are rendered shell be entitledto five per cent of said judgments,to be paid out of the amount then collected.*
hrtlole 3892, Vernon's AnnotatedCivil Statutesreads ma as rolrowa: "Any offioar mentioned in this Chapterwho does not oolleat tbe maximum amount of his teea Sor any fiscal year and who reports delinquent fees for that year, shall be entitledto retain, when oollected,such part of such ddlinquent Sees as is sufrioientto complete the maximum oompensation

authorized by Articles 3883, 3883-A, and 3886 for the year in which delinquentfees were chn-rzed,

and also retain the mount of excess fees authorizedby law, and the re:.:ainder OS the delinquentfees ror that fiscal year shall be paid es herein provided for when collected;proviCed the provisionsof this Article shall not apply to any officer after one year from the date ho ceases to hold tile Office t0EonorableCampbell II. Ford, Fage 4 

### 702

which any delinquentfee is due, end in the event the ofricer earning- the feea that are delinquenthas not oolleoted the same within twelve months atter he ceasea to hold the office,~the amount OS Sees collected shall be paid into the oountytreasurg. Frovlded,however, that nothing in this Xot precludes the payment of ex-officio Sees in accordanoewith Title 61 OS the Pevlsed Civil statutes of Tesas, 1925, as part of the maximum compensation. Provided, that any change made In this Article by this Aot shall not ap;ly 

### to fees heretoSore earned.’
Artiu&e 3891, Vernon’6AnnotatedCl& Statutes, reads, In part, as Sollowsr
-* * * All current fees earned and collected by ofiiceranamed In Article 3823 during any riaos.1 year in excess OS the maximum and axcess allowedby this Aat, and for their services and. Sor the servicea of their deputies end aesistante and authorizedexpenses,togetherwith all delinquentSees collectedand not used as provided fin Article 3892, or used to pay aalarleaOS deputiesand asslstantowhen ourrent fees are lnaufSicfent,shall be paid into the CountyTreasury in the county where the exooss aaoruod.
*All feea due and not collected,as shown In the report requiredby Article 3897, shall be oollected by the ofticer to vihoa6 orriae the fees aatrued and shall be dispoaed oS by said officer in eoaordance

wlth the provisionsOS this Act. * * *R

It is to be noted that the languageused in Article 930, Code of Criminal Procedure,provides that the comniieslons are payable to the county attorneywho recovered the judgment.

on February 24, 1932, this departzontheld in an opinionwritten by :ionorable Horrer C. DeXolfe addressedto EonorableTaylor Carlisle,County Attorney,Kaufman,Texas, that the former Coungy Attorneywas entitled to the comcais~ion~ on fines,under facts similar to those stated in your inWirY-.

HonorableCmpbell X. For&, Fags 8

In view of the Soregoing,you are respectfully ad- 

## risea that it is the opin$on or this Cepart;ont that the fomierCountyAttorney is entitledto tke corini6sione on tte fines &cd 

## 113

a~lsoeditha to the reef3 aB providedby statutefor his serviosa in the cases that he tried and are now on appeal, r,rovlded, horejer,he has not alraady oolledtedthe IL-aximum mount Oi his fees fcr the year in whloh said fees were earned, and, provided further, thnt said fees nere reportedby h5m as delinquentfees Scr that year, end are oolleoted

within twelve rronthe after he goes otzt

of off1ce. Trusting that tte foregoing fully~answers your In- ( qulry,we are

, ,+-- FIRST ASS.;STAN+ .'

Al!TORJ.iEY

G$I?ERAL