Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-01-02
FEES IN FELONY CASES.

Comptroller McCall's Circular-The Opinion Of
the Attorney-GeneraI Reviewed.
The following communication addressed
to one of the law officers Of the state viii
prove of interest to q large number, and
is self-explanatory:
Fort WORTH, Tex, Dec q, 1898.
District CLERK, etc.
DEAR SIR-Your favor with enclosed
circular from the comptroller of date
December IS, together with the opinion
of the Acknowledgements with reference to
the fees Of district clerks and sheriffs in
felony cases, to hand. You ask my
opinion as to how far the declaration OF
the comptroller that be viii not audit
your accounts is obiter dictum, and ],
further, that 1 express my view with re-
spect to the correctness of such action as
authorized by the attorney general in the
language Of the opinion referred to.
The opinion is predicated upon certain
accounts presented by the sheriff and
district clerk of Callahan county. So
far as relates to those cases, whether the
accounts are correct or Incorrect, is i'm
material in considering, IN the abstract +,
rule here promulgated and made gen.
eral in terms and application.
The attorney general is the legal ad-
wiser of heads of departments, including
the comptroller, and whether mandatory
or not, the latter is governed by the
opinions of the former upon matters in
volying the duties of his office, although
the final action of executive officers is
extra judicial, oftentimes arbitrary if
you will, and without remedy except by
legislative appeal. In view Of the opinion
of 20 or ~ %Iaa
comptroller of which you complain was :,
nolens volens, proper and justifable
However, do not concur in the view of
the attorney general who asserts the fol-
lowing proposition:
When the case has been s'fnally disposed of
by trial. or by dismissal, which, in connection
with defendant death limitation at the time,
legally ends it, then only is the clerk entitled to
the hve-dollar fee prescribed in the statute.''
Applying this rule, yon are respectfully adj
vised to require all accounts presented by the
district clerk for fees due in cases dismissed
TO show and to satisfy you that they are both in
law and in fact finally disposed off,
Such view is foreign to the language
and import of the statute. 1t is nowhere
declared that case must be finally dis
posed of by trial or legally end before the
clerk is entitled TO a fee of So. On the
contrary the statute reads: ''The clerk
of the district court shall receive for each
felony case disposed of without trial So -
Act, April II, 1888, p. So. From this
it is clear that the fee becomes due and
payable from the state in every case
finally disposed of without trial, and the
only remaining question is how or when
is case so disposed Of? The attorney
general says further:
Is a case when merely dismissed sEhnalIy
disposed OFF, Not necessarily so. If in fact or
in
for the particular offense as to the person in
dicted therefor then it may be finally disposed
Off as contemplated by the statute. Acertffcate
or statement showing that case was eds
missed simply conveys the Specification ordin-
arily applied TO the word and can not establish
the clerk legal right to the fee of IS that would
be due him If the case had been finally disposed
of. All courts, officers and LAWYERS certainly
understand the distinction of the two terms
They are not understood nor accepted as synony-
nous. dismissal does not prevent renewed
action against the accused for the same offense
except when 1t has been barred by limitation or
death removes the criminal, thereby making it
final. To-day the accused is indicted, the bill is
discovered to be defective, the witnesses can not
be procured to support 1t, and the case is f'dis-
nissediJ brit indeed not tG6naIlv iisnosed of
for on tomorrow, next year, the year after. even
up to the last day OF the time within which Grim
chapter l, G. G. P.--another indictment against
him for the same offense may be presented by the
grand jury, or a new one upon which entirely
different proceedings may be had with relation to
him.
The foregoing suggests the following;
l. The term leach case simply i'm
plies each suit or action, each cause or
prosecution, if you please. In such
prosecution then disposed of without
trial the state is due the clerk for work
performed the fee of IS. To the same
end where there is trial by jury $40 is
paid, neither of which are paid by de-
PENDANT but by the state. Hence by the
term Leach felony case the statute re-
fers not to the subject or individual but
to the subject matter, that is, the amount
of work performed, which is
seldom a less (hoc verbal in
cases disposed of without trial, than
the reverse, with the ruling proylso that
the fee OF So IS the only costs allowed in
cases disposed Of without trial.
g To dismiss q cause is q term IN
courts of chancery for renewing a cause
out of court without any further hearing
Under our statute the district or county
shall not dismiss a case unless he
shall file written statement with the pa
pers in the case setting out his reasons
for such dismissal, which reasons shall be
in the Judgment Of the dis
missal and no case shall be dismissed
without the permission of the presiding
judge, who shall be satisfied that the rea-
sons so stated are good and sufficient 90
authorize such dismissal Act Aug. z.
1875, o. 50. A dismissal is in legal eff
feet, synonymous with the term noIle
Ito be unwilling to proceed) the
zsset OF which, when obtained, is to put
Sezzz@='t without day, but 1s@aoes