### THEATTORNEY GENERAL OFTEXAS
AUSTXNH.'~EXAS December 

### 18,1963

Honorable Edna Claneros County Attorney Wlllacy County Raymondvllle,Texas OpinionNo. C-195 Re: Questions regarding the assessment and collection of fees Dear Miss Clsneros: in felony cases.

You have requested the opinlon'of'thlsoffice as to ce,rtaln

questions regarding the assessment and collection of fees by prosecutingattorneys and district clerks in felony cases. Willacy Countyhaa a population of 

### 20,081, and cast over 3,000votes at thepreceding presidential election. 

### “1
. What fee Is allowed the prosecuting attorney In a non-reduciblefelony case other than a felonioushomicide and is It to be taxed as court costs even though the State of Texas does not pay such fee to said attorney?" Several statutesare pertinent to this and succeeding questions,and will be quoted in part:

Article 

### 1018,Vernon's Code of Criminal Procedure: "Whenthe defendant is convicted, the costs and fees paid by the Stateunder this title shallbe a charge againsthim, except when sentenced to death or to Imprisonment for life, and when collected shallbe paid Into the State Treasury." Article 1019, Vernon.!6 Code of Criminal Procedure: "If the defendant is Indicted for a felony and upon convictionhis 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 shallbe paid by the State to any 'officer. All costs in such



### -940--

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

cases shallbe taxed, assessed and collectedas in misdemeanor cases." Article 1025,Vernon's Code of Criminal Procedure: "In each countywhere therehave been cast at the precedingpresidential election 3000votes or over, the district or county attorney shall receive the following fees:"Forall convictions of felonywhen the defendantdoes 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: "Districtand county attorneys shallbe 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 convictionunder the laws against gamingwhen 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 prosecutingattorney receive a fee of $24.00where therehas been a conviction for a felony other than felonious homicide. It is noted that the county officials of Wlllacy County are on a salarybasis, and that Article 3912e,Vernon's Civil Statutes,prohibits the paymentby the State or county

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### (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 prosecutingattorneymay not himself receive the fee provided for in Article 1025, such costs shouldbe 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 casewhere the punishment assessed is a fine or jail sentence or both?" Article 1019, quoted above, provides that the costs in this type of situationare to be determinedas In misdemeanor cases. Article 1061,Vernon's Code of Criminal Procedure,requires that, in cases ofmisdemeanor conviction, the prosecuting attorney is to be allowed a fee of $15.00, and such fee Is to be assessed and collectedas outlined in the answer to Question No. 1, above. Further, Article 950, Vernon's Code of Criminal Procedure,authorizes the collectionof 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 punishedby conflnement'

In the penitentiary?" The defendanthere 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 statedanotherway, 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 Criminalprocedure. It shouldbe noted that, since the Stateno longerpays any fees, the $8.00 fee provided for In this statute can only be assessed upon a conviction for felony. Thus no entry shouldbe made In the District Clerk's fee book until after conviction.

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### 4 (C-195)

"5
. Whether the payment of court costs In felony caseswhere a defendant Is granted probation can be Includedas one of the terms and conditions of such probation?" In the cases of Ex Parte Sethers, 

### 151Tex.Crim. S.W.2d 

### 358 1948 , and 

### Ex ParteMorgan, 159 Tex. Crlm.



### I I 5 3, 209 2 1, 

### 262 2 S.W.2d 

### 728 1953 , it was held that the payment of court costs was a necessaryprerequisite to discharge from custodyunder probation. However, in neither of these cases were the payment of court costsmade a condition of probation. In view of the fact that Section 

### 6 of Article 781d, Vernon's Code of Criminal Procedure,the Adult Probationand Parole Law of 1957, gives to the court jurisdictionto impose a wide range of conditions In grantingprobation, it Is the opinion of this office that the payment of court costsmay be includedas one of the conditions Imposed. If the payment of proper court costisis 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 thanhomicide, in a countywhere more that 3,000votes were cast In the preceding presidential election, the prosecutingattorney 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 chargedwith a felony but the punishment assessed Is a fine or jail sentence or both, Article 1061,Vernon's Code of Criminal Procedure,requiresa 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 collectedas 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 shouldnot be made
-943-Hon. Edna Claneros,page 

### 5 

### (c- 195)

until conviction is had. In caseswhere 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 APPROVEDFOR TRE ATTORNEY GENERAL By: H. Grady Chandler

.

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