THEATCORNEY GENERAL 

OF TEXAS 

GERALD C. MANN AUSTXN xx. Tsxan 

A-rroRNlcY OSNBRAX. 

Honorable~F. J. Moss 

Cbuntg Auditor 

Montague'Ccllnty 

Montague, Texas 

Overruled In Dart by O-1981 

Dear Sir: Opinion No. 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,officers and 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 in Article 1078, Code of Criminal 

Procedure?" 

Section'5 of Article 567-b, Vernon's Penal Code 

reads as follows: 

"In all prosecutions under sections 1,'2 and 

3, of this Act; process shall be issued and 

served in the county or out of the county where 

the prosecution Is pending and have the same 

binding force and effect as though the offense 

being prosecuted ~were a felony; and all officers 

issuing and serving such process in or out of 

the county wherein the prosecution is pending, 
Honorable F. S. Moss, page 2 o-1567 

and all witnesses from withln or without the 

county wherein the prosedution is pending, shall 

be compensated in like manner as though the offense were a felony In grade." 

We refer you to our opinion No. o-1135, in which,we 

held that the appropriation under House Bill No. 257, 46th 

Leglslature,~ the Judiciary Appropriation Bill, for payment by 

the State of~costs and fees to officers and witnesses in 

felony cases, as provided in Chapter 2, Tltle~l5 Volume 3, 

Vernon's Code of Criminal Procedure, Is not available for the 

purpose of compensating officers and witnesses in similar manner for first and second convictions under Article 567-b, Vernon's Penal Code, where the amount of money involved is less 

than fifty dollars, which are misdemeanors only, but It is 

available in all cases of a'thlrd convfctfon, and convictions 

where the amount Involved Is fifty dollars or more, whlch.amount 

to felonies Wtthln the statutory definltlon of Article 47, 

Vernon's Penal Code;and that there Is no appropriation with. 

which to carry out the provisions of Section 5 of Article 567-b, 

Vernon's Penal Code. 

First and second convictions for violation of Sections 

1, 2 or 3 of Article 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~of Article 567-b refers to "all prosecutions 

under Sections 1, 2 and 3 of thfs Act." 

For convictions under the Act which do not amount to 

felonies, there is no approprlation.in the Judiciary Appropriation Act, House Bill No. 257, 46th Legislature, for the 

payment of costs and fees of officers and witnesses by the 

State. 

By placing all offenses prosecuted under Article 567-b, 

supra, on the plane of felonies, the Legislature plainly indicated its intent that the State only be liable for compensating officers and witnesses In accordance with 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 felony prosecutions under the Act.' The State is liable 

under Section 5 fin the misdemeanor cases, but there is no 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 incumbent upon the State to 

pay the officers and witnesses as provided, but that there is 
Honorable F. J. Moss, page 3 o-1567 

no appropriation available except for, such offenses 

to statutory felonies under Article 567-b. 

as amount 

The State does not pay the fees of Nitnesses within 

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 tinder Section 5 of 

Article 567-b, Vernon's Penal Code, officers and witnesses are 

entitled to be paid the same amount as they would be entitled 

to If the case were a felony with the exception of witnesses 

resid1nn Fn the county who are'not Daid by the State in felonr 

castes; Eher@ being no-appropriation; howe;er, at 

time for compensation in cases where 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 Criminal actions) shall be a charge against 

him, except when sentenced to~death or to lmprisonment for life, and tihep 5ollected shall be paid 

gnu Fhe State Treasury. (Parenthetical insertion 

. 

Article 1019, Code of Criminal Procedure, provides: 

"If the defendant is indicted for's felony 

and'upon conviction his 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 bjr the State to any officer. All costs 

in such cases ~&hall be taxed, assessed and collected as In misdemeanor cases." 

-'- As has been poIlited out, Section 5 of Article 567-b,~ 

supra, attempts to place all charges prosecuted under the A& 

bn the plane of felonies. Consequently, every offense whether 

8 statutory felony or 8 misdemeanor will be treated as If it 

where a felbny. This equality of treatment, however, do¬ 

make the felony'appropriatlon in the Judiciary Appropriation 

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 section would have the effect of 

excepting offenses under Article 567-b from the provisions of 

Article 1019, supra, which says that "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." 

Where under the Act prosecutlonls for a felony, and 

conviction for a misdemeanor is obtained, then costs will be 

paid the officer, since.the dTstlnctFon Is abolished by Section 5 of Article 567-b, supra, as to payment of costs and 

fees in the case of felonies and misdemeanors. 

As for the application of 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 charges under 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 

distinction between felonies and misdemeanors under Article 

567-b has been abolished in the case of-~convlctions under the 

Act. Consequently the convicted defendant will be charged with 

costs and fees in every Instance under the Act in exactly simliar manner as the convicted defendant In a felony case where 

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 ares enforceable only 

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 'so advised that in,accordance with 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 charged with the costs ana fees 

paid by the State, because mlsdemeanors'under Article 567-b 

are to be-treated exactly like felonies; and Article 1018, Code 

of Criminal Procedure, is applicable In all convictions under 

the Act while Article 1019, Code of Criminal Procedure, Is not 

applicable. 

Article 1078, Code of Criminal Procedure, reads as 

follows: 

"Witnesses in criminal cases shall be allowed one dollar and fifty cents a day for each 

day they are in attendance upon the court, and 
Honorable F. J. Moss, Page 5 o-1567 

six cents for each mile 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 (See Article 

1036, Code of Crlmlnal.Proc~edure) and second, that all offenses under 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 involving misdemeanors under the Act are not entitled 

to compensation since their status for this purpose is that 

of felonies. This is the effect of Section 5 of Article 567-b. 

In-answer to your fourth question, under Article 567-b, 

Section 5, witnesses withfn the county are not entltled'to be 

compensated as provided in Article 1078, Code of Criminal 

Procedure, since all offenses are regarded as felonies, with 

costs payable by the State, and "within the county” wltneimes 

do not receive payment of fees from the State in felony cases. 

As a concluding observation, we have endeavored to be 

perfectly consistent in applying the various articles of the 

Code of Criminal Procedure“to offenses which amount to vlolations under Article 567-b and which under Section 5 of said 

article "shall be compensated in like manner as though the 

offense were a felony in grade." 

Trusting that we have answered all your inquiries satisfactorily, we are 

Yours very truly 

ATTORREYGEXERAL OF TXKAS 

DS:LM:wc 

APPXOVED DEC 16, 1939 

s/Gerald C. Mann 

A~ORNEXGENERAL OF TEXAS 

By s/Dick Stout 

Dick Stdut 

Assistant 

Approved Opinion Committee By s/%W% Chalrman