Honorable Ben Niedecken,Jr. County Attorney Jones County Courthouse Anson, Texas OpinionNo. C- 789 Re: Payment of court costs to Lynn County on a felony case wherein the case was transferred %o Lynn County from Jones Dear Mr. Niedecken: ~~~;;u~ a change

. Your recent letter to this office requestsan opinion concerning the'followlngfacts:

"Cause No. 4583, State of Texas vs. Gerald D. Knight, in Jones County, Texas, was filed as a result of Grand Jury Indictmentagainst the accused. The defendant'sattorneys asked that this case be transferredand the DistrictJudge of the 104th Judicial District of Texas, upon such request, transferred this case to Fnn County, Tahoka, Texas. It was filed in the District Court under Cause No. 1315, State of Texas vs. Gerald D. Knight. "The State of Texas, through its District Attorney,made it known that they intended to seek the death penalty in this case; however, the case was tried upon the insanity of the defendant. The defendantwas found insane at the time the crime was committedand sentenced to the Rusk Mental Hospital, Rusk County, Texas. "We, of Jones County, Texas, have received a bill from the District Clerk of Lynn County, Texas, as follows: A. Two attorneys for three days work @ $100.00 per day $600.00 B. $250.00 for investigationand expert testimony 250.00

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C. Jury fees 160.00 D. Court cost8 32.00 E. Sherlff's fees as follows: 

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(2) (3) (4) (5)

(6) (7) Due Lubbock County for board of prisoner $141.00 Special Night Deputy, Lynn County, Texas 168.00 Night Guard 12.00 * Pay Security Guardat Hearing 44.00 Transportingthe defendant to Big Spring StateHospital for doctorls examination lo.24 Meals for twelve officersat hearing of the defendant 24.84 Transportingthe prisoner from ,.Lubbock

County Jail to Rusk Mental Hospital, Rusk County,Texas, as follows: 16.51 Total amount lJrnn County Sheriff 416.69 "Before the case was transferredto IJrnn County the District Judge of Jones County, Texas, authorizedthe payment of $129.40 for the purpose of investigationof this case." You have asked the followingquestionsconcerning the above st.ated

facts: "1. Are we obligatedto pay the Court costs of $32.00 as billed by Lynn County? "2. Are we obligatedto pay the $250.00 for investigation

and expert testimonyin addition to the $129.40 already paid? "3

. Are we obligatedto pay the Lubbock -?-QO-Honorable Ben Niedecken,Jr., page 3 (C-789 )

County Jail for the board of prisoner in the amount of $141.00? "4. Are we obligatedto pay a Special Right Deputy $168.001

Are we obligatedto pay a Night Guard

"6. Are we obligatedto pay a Security Guard at the Hearing in the amount of $44.00? "7. Are we obligatedto pay for transporting the defendant to B&Spring State Hospital for doctor's examinationin the smount of $10.24~ "8. Are we obligatedto pay for meals for twelve officers at the Hearing of the defendant in the amount of $24.84?

“ 9. Are we obligatedto pay for the transporting of prisoner from Lubbock County Jail to Rusk Mental Hospital,Rusk County, Texas, In the amount of $16.511" In answer to questionAo. 1, it is the opinion of this office that Jones County is under no obligationto pay coWt costs In the amount of $32.00. There is no authority In the statutes of the State of Texas which would authorizean initiatingcounty to pay court costs to another county on a change of venue. In answer to questionNo. 2, it is the opinion of this office that Jones County is authorizedto pay a maximum of $250.00 for Investigationand expert testimony. Article 26.05, Section 1, Code of CriminalProcedure,provides,

"A counsel appointedto defend a person accused of a felony or a misdemeanorpunishable by Imprisonmentshall be paid from the general fund of the county in which the prosecutionwas institutedaccording to the following schedule: II

.. .. l.(c) For expenses incurred for purposes of investigationand expert testimony,not more than $250.00." -3790-HonorableBen Nledecken,Jr., page 4 (c-789 )

Jones County,having alreadypaid $129.40 is only authorized to pay out the additionalamount of $120.60. It 1s the opinion of this office that Jones County is obligatedto pay for all expenses incurredon account of the safe keeping of the defendant. Article 54.02, Section l(b), Code of CriminalProcedure, specifically provides that Articles 1037 through 1056, Code of CriminalProcedure of Texas, 1925, are not repealed. Article 1037, Code of Criminal Procedurg.

provides: “Each county shall be liable for all expenses Incurredon account of the safe keeping of prisoners confined In jail or kept under guard, except prisonersbrought from another county for safe keeping,or in habeas corpus or change of venue; in which cases, the county from which the prisoner is brought shall be liable for the expense of his safe keeping.” Whether or not the specificamountsbilled to Jones County are reasonableand proper, are questionsof fact which can not be passed upon by this office. In answer to question No. 3, concerningthe payment of $141.00 for the board of the prisoner,it is the opinion of thju office that Jones County is obligatedto pay such amount, if this amount is the actual expense incurred for the feeding of the prisoner. This officehas held in prior opinions that a sheriff can not be paid any specificsum for the boarding of prisoners, but only for actual expense incurredby him in feeding the prisoners in his custody. O-1242, O-2379,V-1232. ._ Attorney General’sOpinionsNos.

In’answerto questionsNo. 4 throughNo. 6, it is the opinion of this office that Jones County is obligatedto pay these amounts, If such amounts are within the limits of Article 1041, Code of CriminalProcedure. General’sOpinionsNos. O-2742, O-925. Attorney
In answer to questionsNo. 7 and No. 9, it is the opinion of this office that these expenseswere not Incurred on account of the safe keeping of the defendant in this case. Since. these expenseswere not incurredpursuant to Article 1037, Code of CriminalProcedure,there is no authority which would authorizethe payment of these amountsby Jones County. In regard to questionNo. 8, you are advised that Article 1041, Code of Criminal Procedure,precludes any allowance for board of a guard or matron employed in the safe keeping of prisoners. -3791-. Honorable Ben Nledecken,Jr., page 5 (C-789 )

SUMMARY
There Is no authority in the statutes of the State of Texas which would aut.horise an initiatingcounty to pay court costs to another county on a change of venue. Article 26.05, Section l(c), Code of Criminal Procedure, provides that the maximum amount to be paid by a county in which a prosecutionwas instituted for investigationand expert testimony Is $250.00. The commissioner'scourt of Jones County is unauthorized to pay an amount In excess of $250.00. While Article 1037 provides that the initiating county shall be obligated to pay expenses Incurred on account of the safe keeping of the defendant, Article 10&l, Code of Criminal Procedure,limits the amount which can be paid for guards. Very truly yours, WAGGONER CARR Attorney General of Texas 

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Assistan;Attorney TWM:lk APPROVED: OPINION COMMITTEE W. 0. Shultz, Chairman Robert Owen Douglas Chilton Malcolm Quick APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright
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