## THEATCORNEY GENERAL OF TEXAS 

## GERALD C.MANN AUSTXNxx.Tsxan A-rroRNlcY OSNBRAX.

Honorable~F. J. Moss Cbuntg Auditor Montague'Ccllnty Montague, Texas Overruled In Dart by O-1981

Dear Sir: OpinionNo. o-1567 Re: Payment of Officers' and witnesses' fees provided for In Section 5, Article 567-b, Vernon's Penal Code
We are in receipt of your letter in which~'you quote part of Section 5 of Article 567-b, Vernon's Penal Code, and request an opinion on the following four questions:

"1

. Under this article does the State or the county pay such officers and witnesses referred to herein? "2

. Are the officers and witnesses herein referred to entitled to be paid the same amount as they would be entitled to if the case were a felony? #f3

. "Is the fee of,officersand witnesses herein referred to taxable against the defendant in the event of convlctlon? "4

. Under this article are the witnesses within the county entitled to be compensated as provided inArticle 1078, Code of Criminal Procedure?" Section'5 ofArticle 567-b, Vernon's Penal Code reads as follows:

"Inall prosecutionsunder sections 1,'2 and 3, of this Act; process shallbe issuedand served in the county or out of the countywhere the prosecution Is pending and have the same binding force and effect as though the offense being prosecuted ~were a felony; and all officers issuingand serving such process in or out of the countywherein the prosecution is pending,Honorable F. S. Moss, page 2 o-1567

and all witnesses from withln or without the countywherein the prosedution is pending, shall be compensated in like manner as though the offensewere a felony In grade."
We refer you to our opinionNo. o-1135, inwhich,we held that the appropriationunder House Bill No. 257, 46th Leglslature,~

the JudiciaryAppropriationBill, for paymentby the State of~costs and fees to officersand witnesses in felony cases, as provided in Chapter 2, Tltle~l5Volume 3, Vernon's Code of Criminal Procedure, Isnot available for the purpose of compensating officers and witnesses in similarmanner for first and second convictionsunder Article 567-b, Vernon's Penal Code,where the amount of money involved is less than fifty dollars,which are misdemeanorsonly, but It is available in all cases of a'thlrd convfctfon,and convictions where the amount Involved Is fiftydollars or more, whlch.amount to feloniesWtthln the statutorydefinltlon of Article 47, Vernon's Penal Code;and that there Is no appropriationwith. which to carry out the provisions of Section 5 ofArticle 567-b, Vernon's Penal Code.

First and second convictions for violation of Sections 1, 2 or 3 ofArticle 567-b, supra,where the amount of money Involved Is less than fFfty dollars are misdemeanors. See Section 4 of Article 567-b, supra.

Section 5~ofArticle 567-b refers to "allprosecutions under Sections 1, 2 and 3 of thfsAct."

For convictionsunder the Act which do not amount to felonies, there is no approprlation.inthe JudiciaryAppropriationAct, House Bill No. 257, 46th Legislature, for the payment of costs and fees of officersand witnesses by the State.By placing all offensesprosecutedunder Article 567-b, supra, on the plane of felonies, the Legislatureplainly indicated its intent that the State only be liable for compensating officersand witnesses In accordancewith the provisions of Section 5. It has already been polnted out, however, that there Is no appropriation to take care of any"charges except the felonyprosecutionsunder the Act.' The State is liable under Section 5 finthe misdemeanor cases,but there isno appropriation to take care of the costs and fees In them.

Therefore, in answer to your first question, it is our apinlon and you are so advised that under Section 5 of Article 567-b, Vernon's Penal Code, It Is incumbentupon the State to pay the officersand witnesses as provided,but that there isHonorable F. J. Moss, page 3 o-1567

no appropriationavailable except for,such offenses to statutory feloniesunder Article 567-b. as amount

The State does not pay the fees of Nitnesseswithin the county in felony cases. Article 1036, as amended, Code of Criminal Procedure.

Consequently, in answer to your second.question, It is our opinion and you are so tidvised that tinderSection 5 of Article 567-b, Vernon's Penal Code, officers and witnesses are entitled to be paid the same amount as theywould be entitled to If the casewere a felony with the exception of witnesses resid1nn Fn the countywho are'not Daid by the State in felonr castes;

Eher@ being no-appropriation;howe;er, at time for compensation in caseswhere the offense misdemeanor.

Article 1018, Code of Criminal Procedure, follows: the present " is a statutory

reads as

'When the defendant is convicted, the costs and ~fees

paid by the Stat& under this tltle'(TFtle 15 i Criminalactions) shallbe a charge against him, exceptwhen sentenced to~death or to lmprisonment for life, and tihep5ollected shallbe paid gnu Fhe State Treasury. (Parentheticalinsertion

. Article 1019, Code of Criminal Procedure,provides: "If the defendant is indicted for's felony and'upon convictionhis punishiiient Is by fine or confinement In the'county jail, or by both such fine and conflnemen't~in the county jail or convicted of a misdenieanor, nb costs shall be paid bjrthe State to any officer. All costs in such cases ~&hall be taxed, assessed and collected as Inmisdemeanor cases."
-'- As has been poIlited out, Section 5 of Article 567-b,~ supra, attempts to place all chargesprosecutedunder the A& bn the plane of felonies. Consequently,every offensewhether 8 statutory felony or 8 misdemeanorwill be treated as If it wherea felbny. This equality of treatment,however, do¬ make the felony'appropriatlonin the JudiciaryAppropriation Bill avallable for payment of costs and fees in misdemeanoti cases, as plainly indicated in the answers to your first two questions.

Since from Section 5 it is apparent that the Legisla-Honorable F. J. Moss, page 4 o-1567

ture Intended that costs be paid officers In both felony ehmges and misdemeanor charges, this sectionwould have the effectof excepting offensesunder Article 567-b from the provisions of Article 1019, supra,which says that "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."

Where under the Act prosecutlonls for a felony, and conviction for a misdemeanor is obtained, then costswill be paid the officer, since.thedTstlnctFon Is abolishedby Section 5 of Article 567-b, supra, as to payment of costs and fees in the case of felonies and misdemeanors.
As for the applicationof Article lo18 under Section 5, It is pointed out that the death sentence or life Imprisonment is not involved In Article 567-b. When the defendant is convicted of any'of the chargesunder Article 567-b, whether a statutory felony or a misdemeanor,he Is subject to having the costs and fees paid by the State charged against him since the distinctionbetween feloniesand misdemeanorsunder Article 567-b has been abolished in the case of-~convlctions under the Act. Consequently the convicteddefendantwill be charged with costs and fees in every Instanceunder the Act in exactly simliarmanner as the convicteddefendant In a felony casewhere the sentence Is not death or life imprisonment.

-. We wish to point out, however, that under Article 1.018, supra, costs assessed agalnst the defendant aresenforceableonly under execution. Ex Parte Byrd, 13 S.W. (26) 855, and Ex Parte Smith, 8 S.W. (2d) 139.

In answer to your third question, It Is our opinion and you are 'soadvised that in,accordancewith the provisions of Section 5 of Article 567-b, Vernon's Penal Code, when a convPction is obtained for any offense whether a felony or a misdemeanor the defendant may be chargedwith the costs ana fees paid by the State, because mlsdemeanors'underArticle 567-b are to be-treated exactly like felonies; and Article 1018, Code of Criminal Procedure, is applicable In all convictionsunder the Act while Article 1019, Code of Criminal Procedure, Is not applicable.

Article 1078, Code of Criminal Procedure,reads as follows:

"Witnesses in criminalcases shallbe allowed one dollar and fifty cents a day for each day they are in attendanceupon the court, andHonorable F. J. Moss, Page 5 o-1567

six cents for eachmile they may travel In going to or returning from the place of trial.'
We have already pointed out that first, the State does not.pay the fees of iltnesses within the county (SeeArticle 1036, Code of Crlmlnal.Proc~edure) and second, that all offensesunder Article 567-b are treated as if they were felonies in respect to the payment of fees and costs.

Consequently,witnesses within the county even In the cases involvingmisdemeanorsunder the Act are not entitled to compensation since their status for thispurpose is that of felonies. This is the effect of Section 5 of Article 567-b.

In-answerto your fourth question,under Article 567-b, Section 5, witnesseswithfn the county are not entltled'tobe compensatedas provided in Article 1078, Code of Criminal Procedure, since all offenses are regarded as felonies,with costs payable by the State, and "withinthe county” wltneimes do not receive payment of fees from the State in felony cases.

As a concluding observation,we have endeavoredto be perfectly consistent in applying the various articles of the Code of Criminal Procedure“to offenseswhich amount to vlolations under Article 567-b and which under Section 5 of said article "shallbe compensated in like manner as though the offensewere a felony in grade."

Trusting that we have answered all your inquiries satisfactorily,we are Yours very truly
ATTORREYGEXERAL OF TXKAS

DS:LM:wc APPXOVEDDEC 16, 1939 s/Gerald C. Mann A~ORNEXGENERAL OF TEXAS By s/Dick Stout Dick Stdut Assistant

Approved Opinion CommitteeBy s/%W% Chalrman