THEATTORNEY GENERAL 

OFTEXAS 

AUSTXNH.'~EXAS 

December 18, 1963 

Honorable Edna Claneros 

County Attorney 

Wlllacy County 

Raymondvllle, Texas 

Opinion No. C-195 

Re: Questions regarding 

the assessment and 

collection of fees 

Dear Miss Clsneros: in felony cases. 

You have requested the opinlon'of'thls office as 

to ce,rtaln questions regarding the assessment and collection of fees by prosecuting attorneys and district clerks 

in felony cases. Willacy County haa a population of 20,081, 

and cast over 3,000 votes at the preceding presidential 

election. 

“1 . What fee Is allowed the prosecuting 

attorney In a non-reducible felony 

case other than a felonious homicide 

and is It to be taxed as court costs 

even though the State of Texas does 

not pay such fee to said attorney?" 

Several statutes are pertinent to this and succeeding 

questions, and will be quoted in part: 

Article 1018, Vernon's Code of Criminal Procedure: 

"When the defendant is convicted, the 

costs and fees paid by the State under this 

title shall be a charge against him, except 

when sentenced to death or to Imprisonment 

for life, and when collected shall be paid 

Into the State Treasury." 

Article 1019, Vernon.!6 Code of Criminal Procedure: 

"If the defendant is Indicted for a 

felony and upon conviction his punishment 

Is by fine or confinement in the county 

jail, or by both such fine and confinement 

in the county jail, or convicted of a misdemeanor, no costs shall be paid by the 

State to any 'officer. All costs in such 

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Hon. Edna Clsneros, Page 2 (C-195) 

cases shall be taxed, assessed and collected as in misdemeanor cases." 

Article 1025, Vernon's Code of Criminal Procedure: 

"In each county where there have been 

cast at the preceding presidential election 3000 votes or over, the district or 

county attorney shall receive the following 

fees: 

"For all convictions of felony when 

the defendant does not appeal, or dies or 

escapes after appeal and before final judgment of the appellate court, or when the 

judgment Is affirmed on appeal, twenty-four 

dollars for each felony other than felonious 

homicide, and forty dollars for each such 

homicide. 

I, n 

. . . 

Article 1061, Vernon's Code of Criminal Procedure: 

"District and county attorneys shall be 

allowed the following fees in cases tried 

In the district or cbunty courts, or a county 

court at law, to be taxed against the defendant: 

"For every conviction under the laws 

against gaming when no appeal is taken, or 

when, on appeal, the judgment Is affirmed, 

Fifteen Dollars ($15.00); 

"'For every other conviction In cases 

of misdemeanor, where no appeal Is taken, 

or when, on appeal the judgment Is afflrmed, Fifteen Dollars ($15.00)." 

With reference to the first question asked, Article 

1025, Vernon's Code of Criminal Procedure, patentlp requires 

that the prosecuting attorney receive a fee of $24.00 where 

there has been a conviction for a felony other than felonious 

homicide. It is noted that the county officials of Wlllacy 

County are on a salary basis, and that Article 3912e, Vernon's 

Civil Statutes, prohibits the payment by the State or county 

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Hon. Edna Cisneros, Page 3 (C-195) 

of any fees to such officers; rather, all fees or commissions 

which the county officer Is entitled to collect are still to 

be assessed, but paid into the Officers' Salary Fund of the 

individual county. Thus, while the prosecuting attorney may 

not himself receive the fee provided for in Article 1025, such 

costs should be taxed as costs of court, and, If recovered, 

paid Into the Officers' Salary Fund. 

"2. What fee is allowed the prosecuting 

attorney in a felony case where the 

punishment assessed is a fine or jail 

sentence or both?" 

Article 1019, quoted above, provides that the costs in 

this type of situation are to be determined as In misdemeanor 

cases. Article 1061, Vernon's Code of Criminal Procedure, requires that, in cases of misdemeanor conviction, the prosecuting 

attorney is to be allowed a fee of $15.00, and such fee Is to 

be assessed and collected as outlined in the answer to Question 

No. 1, above. Further, Article 950, Vernon's Code of Criminal 

Procedure, authorizes the collection of 10% of all fines collected. 

“3. What fee is allowed the prosecuting 

attorney in a reducible felony case 

where the defendant Is not punished 

by confinement in the county jail or 

assessed a fine, but punished by conflnement' In the penitentiary?" 

The defendant here has been convicted of a felony, and 

thus the answer to this question is the same as the answer to 

Question No. 1. 

“4 . What fees are allowed a District Clerk 

in felony cases in Wlllacy County, or 

stated another way, what fees should 

the District Clerk enter In the fee 

book on felony cases?" 

The District Clerk should enter the fees provided for 

in Article 1026, Vernon's Code of Criminal procedure. It 

should be noted that, since the State no longer pays any fees, 

the $8.00 fee provided for In this statute can only be assessed upon a conviction for felony. Thus no entry should be made 

In the District Clerk's fee book until after conviction. 

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Hon. Edna Clsneros, page 4 (C-195) 

"5 . Whether the payment of court costs 

In felony cases where a defendant Is 

granted probation can be Included as 

one of the terms and conditions of 

such probation?" 

In the cases of Ex Parte Sethers, 151 Tex.Crim. 

S.W.2d 358 1948 , and Ex Parte Morgan, 159 Tex. Crlm. 

I I 

5 3, 209 

2 2 1, 262 

S.W.2d 728 1953 , it was held that the payment of court costs 

was a necessary prerequisite to discharge from custody under 

probation. However, in neither of these cases were the payment 

of court costs made a condition of probation. In view of the 

fact that Section 6 of Article 781d, Vernon's Code of Criminal 

Procedure, the Adult Probation and Parole Law of 1957, gives 

to the court jurisdiction to impose a wide range of conditions 

In granting probation, it Is the opinion of this office that 

the payment of court costs may be included as one of the conditions Imposed. If the payment of proper court costis is not 

made a condition of the probation order, of course the court 

costs are due and payable at the time the probation order Is 

entered. Article 781d, Sec. 11, Vernon's Code of Criminal 

Procedure. 

SUMMARY 

If a defendant is convicted of a felony 

other than homicide, in a county where more 

that 3,000 votes were cast In the preceding 

presidential election, the prosecuting attorney Is allowed, by Article 1025, Vernon's 

Code of Criminal Procedure, a fee of $24.00. 

This fee Is to be taxed as court co&~, -and, 

when collected, is to be paid into the Officers' Salary Fund. 

If a defendant Is charged with a felony 

but the punishment assessed Is a fine or jail 

sentence or both, Article 1061, Vernon's Code 

of Criminal Procedure, requires a fee of $15.00, 

and Article 950, Vernon's Code of Criminal Procedure, required the collection of 10% of the 

amount of the fine, both of which are to be 

taxed and collected as above. 

The District Clerk of Wlllacg County 

should enter in the fee book the fees provided for in Article 1026, Vernon's Code of 

Cz%ninal Procedure, in cases of felony conviction. Such fee entry should not be made 

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Hon. Edna Claneros, page 5 (c- 195) 

until conviction is had. 

In cases where probation is granted, 

the payment of court costs can be included 

as one of the terms and conditions of such 

probation. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

MLQ:ms 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

V. F. Taylor 

Al10 Crow 

John Reeves 

Bill Allen 

APPROVED FOR TRE ATTORNEY GENERAL 

By: H. Grady Chandler . 

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