Twa~ ATITOICNEY GENERAL
OFTEXAS
WILL WILSON ATTORNEYGEN~~AJ. tune 21, 1961
HonorableNelson Quinn OpinionNo. WW-1079 CountyAttorney Taylor County Re: By Article 877 of Vernon'sCode Abilene,Texas of CriminalProcedure,Is the County bound to pay a munici- pality a portionof the fine and court costs collectedfrom a defendant,who has appealed his case from the corporation court to the county court at Dear Sir: law?
This opinionis Issuedin responseto your requestfor an opinionof this office concerning,whether any portion of the fines and costs imposedon's defendant,in a-case appealedfrom the corpo- ration court.by the countycourt at law shouldbe paid to the munici- pality from whence the appeal comes,and if so, which part shouldbe so paid.
In your letteryou~raisethe questionof the ambiguityof Article877 of Vernon'sCode of CriminalProcedureas it affectsthis matter. Articie877 reads as follows:
"/ct. 877. Dispositionof fees
'. The fine imposedon appealand the costs im- posed on appeal and.in the corporationcourt shall be collectedof the defendant,and such fine,and the cost of the corporationcourt when collected shall be paid into the municipaltreasury."
The problem is to determine.whichof the phrases In the first clause is modifiedby the phrase, "and in the corporationcourt." We think that this referenceis merelyto the costs on appeal and not to the fine for three reasons:
(1) The rule that there is a singlepunishmentfor a singlecrime indicatesthat one of the fines, either the one assessedin the corporationcourt, or the one on.appealmust be a nullity,and since the,whole,in- tendmentof.the trial de nova is to assess a new fine : or to set the defendantat liberty,the nullitymust be the corporationcourt fine. L .
Hon. Nelson Quinn,Page 2 (ww-1079)
(2) Had the Legislatureintendedto refer to both fines and both sets of costs, it would have phrased its intentby some such constructionas, "the fines and costs imposedon appeal and in the corporation court . . ."
(3) Our Court of CriminalAppealshas held that a trial de novo wholly obliteratesthe action of the corporatioucourt, Ex rte Jones 128 Tex. Grim. 380, 81 S.W.2d70SE",,,,' , wherein it is said: ". . .we deem it only necessaryto say that the lan- guage of our Constitutionand statutesabove quoted is so plain as to almost demandapologyfor an argumentor any other citation. A trial de novo literallyIs a trial from the beginningas If no 'formertrial had been had. Each step taken neces- sary to the joiningof the issue in the superior court--justas In the lower--mustbe gone through with in the superiorcourt as if there had been no trial at all in the lower court. If we may be pardonedfor saying so, the complaintmust be read or waived, such plea enteredas the accusedsees fit, and the evidencemust be heard,and the verdictand judgmentrenderedin accordancewith law in the superiorcourt,withoutregardto the evidence,plea, or manner of conductthe trial took in the lower court. Shu.+ v.,~ Lempert, 55 Tex. 273; Ham-oldv. Darwise,10 Tex. Civ. App. 1.38,30 S.W. 498; .SanSaba Water C.~&.Im. Di,st,v.Sutton, (Tex. Civ. App.').8'S.W.2d319; +-to.n Salt Co. v. Wells, (Tex. Civ. App.) 35 S.W.2d 454. All of which means a trial in the county court of the entire case anew as