Honorable Ben Niedecken, Jr. 

County Attorney 

Jones County Courthouse 

Anson, Texas 

Opinion No. 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 requests an opinion 

concerning the'followlng facts: 

"Cause No. 4583, State of Texas vs. Gerald 

D. Knight, in Jones County, Texas, was filed as 

a result of Grand Jury Indictment against the 

accused. The defendant's attorneys asked that 

this case be transferred and the District Judge 

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 

defendant was found insane at the time the crime 

was committed and 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 investigation and 

expert testimony 250.00 

-3788- 
Honorable Ben Niedecken,, Jr., page 2 ‘(c-789 ) 

C. Jury fees 160.00 

D. Court cost8 32.00 

E. Sherlff's fees as follows: 

(1) 

(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 Guard at * 

Hearing 44.00 

Transporting the defendant 

to Big Spring State Hospital 

for doctorls examination lo.24 

Meals for twelve officers at 

hearing of the defendant 24.84 

Transporting the 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 transferred to IJrnn 

County the District Judge of Jones County, Texas, 

authorized the payment of $129.40 for the purpose 

of investigation of this case." 

You have asked the following questions concerning the 

above st.ated facts: 

"1. Are we obligated to pay the Court costs 

of $32.00 as billed by Lynn County? 

"2. Are we obligated to pay the $250.00 for 

investigation and expert testimony in addition to 

the $129.40 already paid? 

"3 . Are we obligated to 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 obligated to pay a Special Right 

Deputy $168.001 

Are we obligated to pay a Night Guard 

"6. Are we obligated to pay a Security 

Guard at the Hearing in the amount of $44.00? 

"7. Are we obligated to pay for transporting 

the defendant to B&Spring State Hospital for 

doctor's examination in the smount of $10.24~ 

"8. Are we obligated to pay for meals for 

twelve officers at the Hearing of the defendant 

in the amount of $24.84? 

“9. Are we obligated to 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 question Ao. 1, it is the opinion of this 

office that Jones County is under no obligation to pay coWt 

costs In the amount of $32.00. There is no authority In the 

statutes of the State of Texas which would authorize an 

initiating county to pay court costs to another county on 

a change of venue. 

In answer to question No. 2, it is the opinion of this 

office that Jones County is authorized to pay a maximum of 

$250.00 for Investigation and expert testimony. Article 

26.05, Section 1, Code of Criminal Procedure, provides, 

"A counsel appointed to defend a person 

accused of a felony or a misdemeanor punishable 

by Imprisonment shall be paid from the general 

fund of the county in which the prosecution was 

instituted according to the following schedule: 

II . . . . 

l.(c) For expenses incurred for purposes of 

investigation and expert testimony, not more than 

$250.00." 

-3790- 
Honorable Ben Nledecken, Jr., page 4 (c-789 ) 

Jones County, having already paid $129.40 is only authorized 

to pay out the additional amount of $120.60. 

It 1s the opinion of this office that Jones County is 

obligated to pay for all expenses incurred on account of 

the safe keeping of the defendant. Article 54.02, Section l(b), 

Code of Criminal Procedure, specifically provides that 

Articles 1037 through 1056, Code of Criminal Procedure of 

Texas, 1925, are not repealed. Article 1037, Code of Criminal 

Procedurg. provides : 

“Each county shall be liable for all expenses 

Incurred on account of the safe keeping of prisoners 

confined In jail or kept under guard, except 

prisoners brought 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 specific amounts billed to Jones County 

are reasonable and proper, are questions of fact which can 

not be passed upon by this office. In answer to question 

No. 3, concerning the payment of $141.00 for the board of 

the prisoner, it is the opinion of thju office that Jones 

County is obligated to pay such amount, if this amount is 

the actual expense incurred for the feeding of the prisoner. 

This office has held in prior opinions that a sheriff can 

not be paid any specific sum for the boarding of prisoners, 

but only for actual expense incurred by him in feeding the 

prisoners in his custody. 

O-1242, O-2379, V-1232. ._ 

Attorney General’s Opinions Nos. 

In’answer to questions No. 4 through No. 6, it is the 

opinion of this office that Jones County is obligated to 

pay these amounts, If such amounts are within the limits 

of Article 1041, Code of Criminal Procedure. 

General’s Opinions Nos. O-2742, O-925. 

Attorney 

In answer to questions No. 7 and No. 9, it is the opinion 

of this office that these expenses were not Incurred on 

account of the safe keeping of the defendant in this case. 

Since. these expenses were not incurred pursuant to Article 

1037, Code of Criminal Procedure, there is no authority 

which would authorize the payment of these amounts by Jones 

County. In regard to question No. 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 initiating county 

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 prosecution was instituted 

for investigation and expert testimony Is $250.00. 

The commissioner's court 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 

&mza& 

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 

-3792-