. 

OFFICE OF THE ATI-ORNEY GENERAL OF TEXAS 

AUSTIN 

acmwoeMuw 

‘-- 

4moroble T1 XC. Wlkinson 

County Au6ttor; Hill Gamty 

ifillnbaro a Taxns 

Dear 32r: 

., 

Gith un opinion 

xk of Hill County 

Stete of Texss the 

1026, 'Code of Cri:aIntion of tile constitutmnt of tbe officcr*s 

plication repeal or, 

Code of Cri:alnnl -Pxocedwo, : 

District Clerk of Ilill Couaty auor has ouch article been expressly or by kaplicntion repealed or sugcraedad .by th3 &option of the 

constitutions1 a2endrxent an&the officer's salary 

if-w? 

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,: 

honorable T. E. Kilhinson, pago 2 

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“3. If In anapler to question No, 2 you 

bold that it Is the duty OS the District Clerk 

ot Hill County to collect from a defendant in a 

orlslnol case the fees provided in Article lC’g4, 

Code of Gritninul ?rocedure, then are such f ces’ 

to be charged and oollocted in all Salon? CQSCS 

or BTO the sa;3e to be oh;lrged end collected only 

in felony cases in whioh the punisbmant assessed _ 

18 a Sine-or jail sentence? 

. 

*4..Xay the District Clerk refuse to doliver 

a transcript r0r riling on appeal 0r a criminal 

adse until the costs of proparing the 8an!o havo 

been paid or an affidavit of inability to pay has 

been Silcd? 

“5. his it tbo duty of the District Clerk in 

Civil cases to tax and colleot the tees provided . 

for in ititicle 3927 as amended in 1941 by aots OS 

the‘ 47th Ingloluture and in the abocnce oi the Sil-. 

lng bf an aSSidavit OS tbe inability to pay costs, 

may the District Clerk refuse to deliver 8 transcript 

on appeal until the same hns been~ paid by the party 

applying t h.eror or? 

“6. Is it the duty of the Distridt Glerkof 

Kill County to charge and use diltgcnce to collect 

the Seas provided in Article 1064, G. G. P. in all 

felony cases Inwhich a conviction is obtained or 

is this drrty linitod to cases in wbiob the fu$t~$- 

ment assessed is a Sine or jail sentence? 

Hill County has a population of 38,355 i.nb.3bitur.ts 

according to the 1940 Pederal Census and the county offXcials 

of oaid county are compensated on anannual 6aLnry basis. 

Bectionc $ QDd 5 of Article 39126, Vernon’s Annotated 

Civil Gtatutefj, re&::RS SOLlOWS: 

Wectio’n 1. Do district officer shall be paid 

by the State oS Toxns nny Sees or comiosion for any 

~oc3rvico geriormed by him; nox shall the Stxte or any 

county pay to any county officer in any county contuining a populctlon of tncnty thousand (29,000) inhebitants or 1~0x8 according to the 1:rst preceding 
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.I.. : 1.63 

.ye&aral Cenouo any feo ox covA3sion for any 

sorvioe by him performed as such officer; provided, 

however, that tho aesosoor and oolloctor of txxea 

shall oontinuo to collect and retain for the benef.Lt of the Officerof Salnry Fund or funds herein7 

altos provided for, all feos and oommlsslons which 

he is authorizod under the Isw to collect; and it ‘. 

,shall be his duty to aooount for and to pay all 

euoh monies received by him into the fund or funds 

oroated and provided for under the provisions of 

this Aot,; provided further, thnt the provisions or 

this Scation shall not offoct the payment of costs 

in civil cases by the State, .but all such costs so 

paid shall be acoounted for by the officers collccting the Seme, as they are required under the provioions of this Act to ncoount for fees, coxmissionn 

and costs oollootod from privet0 partics.’ *. * _ ‘ 

“SOO. 5. ft shall bo the duty or all OrriW8 

to oxarge’and oolloct in the Manner authorized by 

law all fees and oondesions whioh 01-o per:aA.ca by 

law to be assessad and collected for 011 Official 

service performed by them. AR nnd when 8UCh fees 

are collected they sbaXl be deposited in the Officers’ 

’ Salary Jund, or funds provided in this Act. In event 

the Co3rJ1ssionore’ Court finds that the failure to 

collect any Se0 ox conniosion was dua to neglect on 

the port of the ofricor ohargod vjith the resgonsi- . 

bility or collecting aaxe, the amount or such roe or 

commission shall be deduoted from the salary of such 

officer. Before any such deduction IS msde, the Commhwioners Court shall furnish such ofricer with an 

itemized state:;ont of the uncollected fees with which 

his acoount is to be chur&ed, and shall notify such 

OfClear or the tine and plc:cc fox a hearing on snma, 

to dctori%ine whether such officer ~733 guilty of neoli~- 

eence, which tLqo for hearing shall be at Icsst ten 

dogs subsequent to the date of notlce, Unless an of-, 

ficer lo ckmrged by 1.~ with the responsibility or 

CollcotinS foes, the Coimnissioners Court shall not 

in any event make ony deductions’ from the authorized 

salary of such 0rfdcor.9v 

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26il; 

Article 1026, Vernon’s Annotated Code of Criminal 

procodufe, provides: 

eIh eaoh oountg where there has been OfIs& 

at the precediaa presidential election 3000 votes 

or over, the district olerk or orlsin.rl district 

olerk &sll. receive the following fees: Eight dollars for each felony oaee finally disqo3e of without trial or dismissed, or tried by 4 jury v:hether 

the defendant bo ttCquittCd oc convicted; eight QentS 

for each one hundred v:ords in each tran3CriPt on appeal 

or cban6e 0r venue; olghty cents for eaterin Wegent 

In habeas corpus cusea, and eight cents for esch on0 

hundred words for preparing transcript in habeas OOT-, 

pus canes. In no event 3hGll the fe33 in habeac oorpus es303 exoeed eight dollars in any one case. In 

.ench county where loss thm 3000 such votes h:lvc been 

M, east, ~~ch~clerk shall raceive ten dollarn for euch 

telony oase so dioposod of, and ten cents ror each one 

hundred-words in suoh transoripts, and oilc dollar for 

enterin judgxent in cnoh habeas corpus. The district 

clerk of any oomty shall receive fifty cents for recording ea’ch nooount of the sheriff.“~, 

In view 0r the rOrOflOing proviulons of ,irticle 3912e, 

suma, you are respectfully advised that ~the District Clerk 

of IN11 County is not entitled to collect rrom the State of 

Texas the fees provided for in Article 1026, Vernon's Annotated 

Coda of Crlninal i?rocctlure. r\rtiolo 1026 Jma bczn superseded 

by the Officers’ Salary Lil\‘f of this State insofar 33 those 

Counties vihero cou;?ty official8 are couponssted on an annual 

salary b33i3 3re 00nO0ma. 

. 

F!e now consider youv second question.. Generally 

BPeaking, Chapter 4, Title 15 of the Code of Criminal Pxoocdure, 

Prosoribes t.he cost to bo tuxed aGainat dore%lants in a n;isdemmor case ‘upon conviction. (See Tex. Jur. 

aad the case or Overstrcct v. State ~dib~f+$+&~: 392* 

Article 1064, Vernonfs Irnnot%ted Code of Criminal 

hOceduro, is R statute allowing certein fees t0 clerk3 of the 

di3trict and ooudiy courts in clninal cases to be p%id by the 

defendant upon conviction. Said article is contniucd in Chapter 4, Title 15 of tho Code of Crinrlnal I’rocedure. 

d 
. 

Article J&9, Vernon98 be3tca Code of Criminal 

ivocodure, provides: 

nff the defonaant 1s lndioted 

and upon conviction his punishment 

conflne.mnt In the county jail, or 

Sine andmcouSlne.3ent in the county 

for R felony 

Is by Sine oris.., orisij 

by both such . 

jail. or convicted of ZI zabderganor, no ~05~8 shall be pnld 

by the State to any officer. All costs In such 

C38e8 shall be taxed, assetma ana 00imtea 88 

in ;nL-dencanor oases.n 

As heretofore stated, Article 1064, Veinon’s Code of 

Criuinal Yroceaure, prcooribes oertain fees which are to be 

yuld to the district and county clerks by the defenaont upon 

conviction In mIsde3eanor oasesc Xn view 0S Article 1019, 

eu?ra, It Is our opinion that In felony cascs~ In whioh the 

pmlol~ent assessed lo R Slae or a jail sentehoe, or both Sine 

and jail sentence, It Is the duty of the District Clerk in auoh 

oaes to tax, assess and collcot the Sees providea by &tlcle 

1064, supra, as In nlsdemanor cases. .;’ 

Article 1064, supfa, has not been repealed by tho 

CfSIcers* Dalury Law of this State. However, w!iere the Dlstrlct Clerk Is oo;openoated on an annual. basis, the Sees colleoted 

under said article, mot be depooited In the OfSicers( Salary 

ruad of the county. It Is our further opinion that Article 

.lGG4 d>es not authorize the District Clerk to collect from any 

dcfendont any Sees whatsoever In a felony cam where the punishmt ansessea Is lmprisonmnt In the penitentiary or acath. In 

Other words, If the defecdant IS Indicted for a felony end upon 

conviction his puniniment lo by Sine or aonSInezent In the county 

1311, or by both such SI;le and confinezznt in the county jail, 

cr convicted of a mIsde,;lcunor,~ the Sees $rovIded by Article 

1364 suet be taxed, assessed and oolloctcd as in nIodo;~eanor 

caL;OS, (See the- case of Dzmte Taylor; 155 S. i’/. I 1315) 

Vrh::t v,ac said In a.?sv:cr. to your second quest~ion 

k:sbOrs your third, ma sixth questions. 

I: Therefore, se deem 

u3noccssury tc discuss these questions further. 
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166 

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’ Your fourth question 1s respectfully an&ered ?n 

th0 negetive. This Identical question has been po3scd upun 

by the ,CCu~$~of 

21s 3. 

CrI@ul kppeuls ,ia the ca3cs of Youde v. &ate, 

; Una EaXIUa8On v. btfit0, 6 si we (2TjTi9, both 

~3303 expressly answering, the Idontioal question presented lu 

go~r I?quIry In the negative. 

With rorerenca to your fifth question, you sre advisea th&, Canerally upeak,inC, it 18 the duty of the Dlstriot 

Clerk ln olvll ,ca3es to tax aad collect the fees provided for 

In .,rtIcle 3927, Vcmon's Atnnoteted Civil Statutes; however, 

the District Clark cannot refuse to doliv3r a transoript on 

a?paul until. the same has been puld fox by th.3 party applying 

therefor, where there has been no affidavit of Inability to 

pay costs mea. A question Identical to your fifth queotiou 

was answcrea In the nefiative by the ;iu?rer:;e Court of this State 

in the early oaso of V.’ m- CostLo& 7 Tax. 460. Stated 

another way, the Supreze Court held th3t a district clerk 1s not 

entitled to dcaand payment of Seo 8 as a condition precsdent to 

tho delivery of the transcript for transsicaion to the appellate 

Court. ThI3 case hso been follovmd in later cme3. and we dircct your 

411, and 

74 3. Pi. 

abme. 

attention to the oam of Tuyl.or v: C3rdno6, 99 S. \5’. 

the Ca3e Of %xfiSla, et 31 v. m?e 011 c~~JC?IiXXIy~ et 3L 

tea) 145, which follo%od the tiuprem Cwrt oaoe olentloned 

This opinion is not to be coustruad n3 pertaining 

to fee3 or compensation that the offialal court reporter nay 

lo outltled to for Utatouent of Beets. 

Yours~ wry truly 

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