Honorable CharlesR, Martin

CountyAuditor Harrison County Marshall, Texas
Dear Sir: OpinionNo. 0-2~877 Re: Article 1055, C.C~.P. Fees of Justice of the Peace and Constableunder facts stated.
Your request for opinionhas been received and carefully consideredby this department. We quote from your request as follows:

"TheLegislature in 1939 enacteda law amendingArticle 1055, of the Code of Criminal Procedure of Texas, 1925, and declaring an emergency, which provides that the county shall be liable for one-half of the fees in a misdemeanor case to the officers of the courtwhere defendant fails to pay his fine and lays his fine out in the County Jail or discharges the same by means ofworking such fine out on the county roads OP on any county project. "QUESTION: Where a Justice of the Peace, or Constable,who are compensated on a fee basis in this county, conducts an examining trial, or makes the arrest etc., as the case may be, in a case that isbound over to the Grand Jury and party is tried and convicted of the offense of driving and operating a motor vehiclewhile under the influenceof intoxicatingliquor,A FELONY, and given a fine and jail sentence, or both, and defendant lays his fine and jail sentence out in the County Jail, or discharges the same by means ofworking same out on the county roads or on any county project,would the county be liable for l/2 costs? "QUESTION: In the event you shouldanswer question number one in the negative,would the county be liable for one-half costs to any officer for examining trial feeswhere party was indicted for felony, and the offense reduced to a misdemeanor. For instance,where party was indicted for **assault**_. .

Honorable CharlesR. Martin, page 2

to murder, a felony, and found guilty

_ -. I ._ of a misdemeanor and r‘lne

or jail sentence, or both, assessed against the defendant?" o-2077

Article 1055,Vernon's Annotated Texas Code of Criminal Procedure,reads as follows:

"The county shallbe liable to each officer and witness having costs in a misdemeanorcase for only one-half thereofwhere the defendant has satisfied the fine and costs adjudged against him in full by labor in theworkhouse, on the county farm, on the public roads or upon any publicworks of~the county; and to pay such half of such legal costs as may have been so taxed, not includingcommissions, the county judge shall Issuehis warrant upon the county treasurer in favor of the proper party, and the same sha11 be paid out of the road and bridge fund or other funds not otherwiseappropriated." Article 1019,Vernon'sAnnotated Texas Code of Criminal Procedure,reads as follows:

"If the defendant is indicted for a felony and upon convictionhis punishment isby 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. All costs in such cases shallbe taxed, assessed and collectedas inmisdemeanor cases." -(Underscoringours) Article 1065,Vernon's Annotated Texas Code of Criminal Procedure,reads as follows:

"The following feesshallbe allowed the sheriff, or other peace officerperforming the same services inmisdemeanor cases, to be ,taxed against the defendant on conviction: "1e For executing eachwarrant of arrest or capias, or making arrest without warrant, two dollars. "2

. For summoning eachwitness, seventy-five cents.

“3o For servingany writ not otherwiseprovided for, one dollar,

“4D For taking and approvlng eachbond, and re-Honorable CharlesR. Martin, page 3 o-2877

turning the same to the court house,when necessary, onedollar and flfty cents, "5* For each commitment or release, one dollar. "6

. Jury fee, in each case where a jury is actually summoned, one dollar. "7

. For attending a prisoner on habeas corpus, when such prisoner, upon a hearing, has been remanded to custody, or held to bail, for each day's attendance, four dollars. "8

. For conveying a witness attached by him to any court out of his county, four dollars for each day or fractionalpart thereof, and his actual necessary expensesby the nearest practicablepublic conveyance, the amount to be statedby said officer, under oath and approved by the judge of the court fromwhich the attachment issued. “9

. For conveying a prisoner after conviction to the county jail, for each mile, going and coming~by the nearest practicable route by private conveyance, ten cents a mile, or by railway, seven and one-half cents a mile. "10. For conveying a prisoner arrested on a warrant or capias Issued from another county to the court or jail of the county fromwhich the processwas issued, for each mile traveled going and coming,by the nearest practicableroute, twelve and one-half cents. "11. For eachmile he may be compelled to travel in executing criminal process and summoning or attachingwitness, seven and one-half cents. For traveling in the service of process not otherwiseprovided for the sum of seven and one-half cents for each mile going and returning. If two or more persons are mentioned In the samewrit, or two or more writs in the same case, he shall charge only for the distance actually and necessarily traveled in the same." Article 1071,Vernon's Annotated Texas Code of Criminal Procedure, reads as follows:

"Justicesof the peacewho sit as an examining court in misdemeanor cases shall be entitled to the same fees allowed by law to such justices fop similar services in the trial of such cases,Honorable CharlesR, Martin, page 4 o-2877

not to exceed three dollars in any one case, to be paid by the defendant In case of final conviction." Article 1052,Vernon'sAnnotated Texas Code of Criminal Procedure, reads as follows:

"Threedollars shall be paid by the county to the County Judge, or Judge of the Court at Law, and TwoDollars and fifty cents shallbe paid by the county to the Justice of the Peace, for each criminal action tried and finallydisposed of before him. Provided,however, that in all counties having a population of 20,000 or less, the Justice of the Peace shall receive a trial fee of ThreeDollars, Such Judge or Justice shallpresent to the Commissioners'Court of his county at a regular term thereof, a written account specifying each criminal action In which he claims such fee, certifiedby such Judge or Justice to be correct, and filedwith the County Clerk. The Commissioners'Court shall approve such account for such amount as they find to be correct,and order a draft to be issued upon the County Treasurer in favor of such Judge or Justice for the amount so approved. Provided the Commissioners'Court shallnot pay any account OP trial fees in any case tried and Inwhich an acquittal is had unless the State of Texaswas represented in the trial of said cause by the CountyAttorney, or his assistant, CriminalDistrict Attorney or his assistant, and the certificate of saidAttorney is attached to said account certifying to the fact that said cause was tried, and the State of Texas was represented, and that In his judgmenttherewas sufficient evidence in said cause to demand a trial of same." Article 1072,Vernon's Annotated Texas Code of Criminal Procedure, reads as follows:

"Sheriffsand constables servingprocess and attending any examining court in the examination of a misdemeanor case shallbe entitled to such fees as are allowed by law for similar services in the trial of such cases, not to exceed three dollars in any one case, to be paid by the defendant in case of final conviction." The case of Ex Parte Shaffer, 92 SW (2nd) 250;'Texas Court of CriminalAppeals, in construingArticle 1019,Vernon's--

Honorable CharlesR. Martin, 'page5 o-2877

Annotated Texas Code of Criminal Procedure,held that a defendant convicted of a felony of drivingwhile Intoxicatedand sentenced to pay a fine of $100.00 could be confined to the county jail, countyworkhouse or county farm until he had satisfied the costs. Article 1019, supra,provides that in such cases (named in the statute) that the costs shallbe taxed, assessed and collected as inmisdemeanor cases. Therefore,we conclude that Insofaras the taxation,assessmentand collection of such costs that such cases should be consideredas misdemeanors for such purposes.

In answer to your first question you are respectfully advised that it Is the opinion of this department that under the facts stated the countywould be liable to the Justice of the Peace and constable for one-half of the legal fees due said officers. The fees of the Justice of the Peace,~underthe above facts,would be controlledby Articles 1052, 1071; and 1055, supra. The fees of the constable,under the~~above,stated facts,would be controlledby Articles 1065, lo72 and 1055, supra.Raving answered your first question in the affirmative it is not necessary to answer your secondquestion. Eowever, we wish to point out thatArticle 1027, C.C.P., supra, excepts caseswhere the defendant is indicted for~murder. Article 1027, C.C.P., supra, also excepts county attorneys and criminal district attorneys from Its pPOvisiOns. Very truly yours ATTORNEYGENERAL OF TEXAS

By s/wm. J. Fanning Wm. J. Fanning Assistant

WJF:AW:wc APPROVED NOV 25, 1940 s/GeraldC. Mann ATTORNEY GENERAL OF TEXAS Approved Opinion Committee~By s/R.W.F. Chairman