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OFFICE OF THE ATI-ORNEY GENERAL OF TEXAS AUSTIN acmwoeMuw ‘--

4moroble T1XC.

Wlkinson CountyAu6ttor; Hill Gamty ifillnbaro a Taxns
Dear 32r:

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Gith unopinion

xk of Hill County Stete of Texss the 1026, 'Codeof Cri:aIntion of tile constitutmnt of tbe officcr*s plication repeal or, Codeof Cri:alnnl -Pxocedwo, :

District Clerk of Ilill Couaty auor has ouch article been expressly or by kaplicntion repealed or sugcraedad .byth3 &option of the constitutions1 a2endrxentan&the officer's salary if-w?

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honorable T. E. Kilhinson, pago 2

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“3. If In anaplerto question No, 2you bold that it Is the duty OSthe District Clerk ot Hill Countyto collect from a defendant in a orlslnol case the fees provided in Article lC’g4, Codeof Gritninul ?rocedure, then are such fces’ to be charged and oollocted in all Salon? CQSCS or BTOthe sa;3eto be oh;lrged end collected only in felony cases in whioh the punisbmant assessed

_ 18a 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!ohavo 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 amendedin 1941 by aots OS the‘ 47th Ingloluture andin the abocnce oi the Sil-. lng bf anaSSidavit OStbe inability to pay costs, maythe District Clerk refuse to deliver 8transcript on appeal until the samehns been~paid by the party applying th.eroror?

“6. Is it the duty of the Distridt Glerkof Kill Countyto 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 drrtylinitod to cases in wbiob the fu$t~$- mentassessed is a Sine or jail sentence? Hill County has a population of 38,355 i.nb.3bitur.ts according to the 1940Pederal Census and the county offXcials of oaid county are compensated on anannual 6aLnrybasis.

Bectionc $ QDd5 of Article 39126, Vernon’s Annotated Civil Gtatutefj, re&::RS SOLlOWS:

Wectio’n 1. Dodistrict officer shall be paid by the State oS Toxns nnySees or comiosion for any 

### ~oc3rvico

geriormed by him; nox shall the Stxte or any county payto any county officer in any county contuining a populctlon of tncnty thousand (29,000) inhebitants or 1~0x8according to the 1:rst preceding

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.ye&aral Cenouoany 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 andretain for the benef.Lt of the Officerof Salnry Fundor 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 euohmonies received by himinto 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 paymentof 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 andcosts oollootod from privet0 partics.’ *.*

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“SOO. 5. ft shall bothe duty or all 

### OrriW8 to oxarge’and oolloct in the Mannerauthorized by law all fees and oondesions whioh 01-o

### per:aA.ca by lawto be assessad and collected for 011 Official service performed by them. 

### ARnndwhen

### 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 amountor 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 ckmrgedby 1.~ with the responsibility 

### or CollcotinS foes, the Coimnissioners Court shall not in any event makeony deductions’ from the authorized salary of such 0rfdcor.9v

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Article 1026, Vernon’s Annotated Code of Criminal procodufe, provides:

eIh eaoh oountg where there has been OfIs& at the precediaa presidential election 3000votes 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 hundredwords for preparing **transcript** in habeas OOT-, pus canes. 

### In noevent 3hGllthe fe33in habeacoor**pus es303**  exoeed eight dollars in any one case. In 

### .enchcounty where loss thm 3000 such votes h:lvc been M,east, ~~ch~clerk shall raceive ten dollarn for euch telony oase so dioposod of, andten 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 ~theDistrict Clerk of IN11County is not entitled to collect rrom the State of Texas the fees provided for in Article 1026, Vernon's Annotated Codaof Crlninal **i?rocctlure.** r\rtiolo 1026Jmabczn superseded by the Officers’ Salary Lil\‘f of this State **insofar 33**  **those Counties**  vihero cou;?ty official8 are couponssted on an annual salary 

### b33i33re 00nO0ma.

. F!enowconsider youv second question.. Generally BPeaking, Chapter 4, Title 15 of the Codeof Criminal Pxoocdure, Prosoribes t.hecost to bo tuxed aGainat dore%lants in a n;isdemmor case ‘uponconviction. (See Tex. Jur. aadthe case or Overstrcct v. State~dib~f+$+&~: 392*

Article 1064, Vernonfs Irnnot%tedCodeof Criminal **hOceduro, is**  **R statute**  **allowing certein**  **fees t0**  **clerk3 of**  **the** 

### di3trict and **ooudiy courts**  in clninal cases to be p%idby the defendant uponconviction. Said article is contniucd in Chapter 4, Title 15 of tho Code of Crinrlnal I’rocedure.

d.



### Article J&9, Vernon98

### be3tca Codeof Criminal ivocodure, provides:

nff the defonaant 1s lndioted andupon conviction his punishment conflne.mnt In the county jail, or Sine andmcouSlne.3entin the county for Rfelony Is bySine orisij

oris.., 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-dencanoroases.n As heretofore stated, Article 1064, Veinon’s Codeof Criuinal Yroceaure, prcooribes oertain fees which are to be yuldto the district and county clerks by the defenaont upon conviction In mIsde3eanor oasesc Xnview 0SArticle 1019, eu?ra, It Is our opinion that In felony cascs~In whioh the pmlol~ent assessed lo RSlae or a jail sentehoe, or both Sine andjail 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 bytho CfSIcers* Dalury Lawof this State. However, w!iere the Dlstrlct Clerk Is oo;openoated on an **annual. basis,**  the Sees colleoted undersaid article, mot be depooited In the OfSicers( Salary ruadof the county. It Is our further opinion that Article .lGG4d>es not authorize the District Clerk to collect from any dcfendont anySees whatsoever In a felony cam wherethe punishmt ansessea Is lmprisonmnt In the penitentiary or acath. In Otherwords, 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 byArticle 1364suet be taxed, assessed and oolloctcd as in nIodo;~eanor caL;OS, (See the- case of Dzmte Taylor; 155 S. i’/. I 1315)

Vrh::tv,acsaid 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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. ’ **Your** fourth question 1s respectfully an&ered ?n th0negetive. 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 ~3303expressly 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 wasanswcrea In the nefiative by the **;iu?rer:;e Court**  **of this**  State in the early oaso of V.’ CostLo& 7 Tax. 460. Stated m- another way, the Supreze Court held th3t a district clerk 1s not entitled to dcaand payment of Seo8 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 dircctyour 411, and 74 **3. Pi.**  **abme.** attention to the oam of Tuyl.or v: C3rdno6, 99 S. \5’

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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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