                                                                                     R-644


                                             EY       ‘#%DTERAL                 ‘,


                                AUSTXN      11, TExas
PRICE DANIEL.
ATTORNEYGEYERAL

                                           July 25, 1947


         Hon. Word A. PVfokm,Jr.,
         County Lftorney,
         Croel~yCotulty,                                Ro:        Authority or the
         CronbbJton, Terns:,                                       County Clerk to
                                                                   reQuirs ‘thede-
                                :.                                 ren48at to pay
                                                                   ror the tranrfsipt
                                                                   in a misdemeanor
                                                                   case in order to
                                                                   perroot,     kis appeal.
         Dbar Sir:

                         we rerer     tb    your   letter     or    3~17   3,    1947, in
         whlck yru maleit       the   rbilm8g:
                         "Is a County Clerk entitled to de-
                  URd   rrom app*llant in a Qrtriul  oam
                  oost  01 the trmmrip$ )r,$Orto the rimal
                  dlsporition or      the    Oaae?R

                     T h bo ,esl
                               ts
                                me85bd ag8inst a defendant in a
         0tiLIm1 0a8.OO.Onstltuts a part Of the punisbmnt, as
         indiaatrd by the following articles in VornoQ’8 Code or
         Criminal Proc6dura:

                         &!tiQlO ,783. “#Nn t&O deirndant
                  i,r only   rS.reP tie     Jadgmezit   s&all      bo   that
                  the Nate Or T61as 1900vdr of the asfOnd-
                  ant the amount    0r
                  bf the *fo8oeut&b
Hon. Lloyd A. Wicks, Jr. - Page 2   (V-313)


      8p88irY it, aad order it enroroed by the


      oases.”

            &%icle 791r Qn eaoh oaao of pot
      cuni8sy fine, an exeoution may Mane ror
      the fine and coets, theugh a capias was
      issued ror the defendant; a a Oe
            AI%iC~l67936 *Whea a defendant is
      oomicted of 8 misdwmrr*or and hie pun-
      ishimnt is assessed at a uecuniaifvrine
      a   . he shall be iamrisoiedin jail for
              a

      a surricientlength of tims to discharge
      the full amount of the fine and costs ad-
      judged against hi%; a . .*
            Artiele 794 previ&.esthat the deietiantwhe
oamot pay "the rise and oosts adjudged agaim8t hii shall
br required te do f#$M3@CZ&borwuntil said is paid.

            Rx parte Carson, 159 S.W. (2d) 126, is a mis-
demeanor ease which involved the question as to whether
OQUrt costs constitute a part Of the puni8hmnt  in a crim-
ha1 case. On the point, the oeurt said:
           *Appellant'scontentionmust be sus-
     tained and the Aot held to be unconstitu-
     tional on still an&her ground. In Ex
     parts MaM, 39 Tex. Cr. R. 491, 46 S.W.
     828, 73 Am0 St. Rep. 961, this Court, con-
     sistentwith all ether pronouncementson
     the subject, has aPlheredto the view that
     costs iticriminal cases are assessed as a
     partl.pf               for the conmission
     of the efrease oharged,"
            The statutes providing for appeals in crimi&
nal caees appear in Vernon's Code of Criminal Procedure,
as fellows:
           Article 013. *A defemlant in any
     crimiaal action ha8 the right of appeal
     under the rules hereinafterprescribed."
            Article 827. “An appeal is taken
     by &ring   notice thereof in open oourt.
      b * ,h"
Ron. Lloyd A. Wicks, Jr. - Page 3   (V-313)




            Article 830, When the derendaat
      appeals in any misdenaanor oaae to the
      Court or Oririnal Ap9Mals, he shall, ii ha
      be in oastody, be committad to jail unless
      ;;wentar into reoognizance au prwidmd by
         0 Ir ror any eauae the dareadant rail8
      to enter into reoognizenaeduriag the term
      at whioh he waa tried, but gate notice and
      took an appeal frem suah oonrietion,he
      shall be permitted to give bail aad obtaim
      his release rrom custody by giving, arter
      the expirationor suoh term of oourt, his
      bail bond. 0 a*
            The defendant is not charged, in any lan,
with any obligation or duty in regard to the tranrcript
on an appeal in a oriniaal case. The judgment lgaiast
M;is   suspendedwhoa he gires notiae or appeal in open
        If he enters into recognizenae,or gives an ap-
peal ioad, aa permitted by Article 830, he is a free man
if no tranaoript is meat by the trial oourt clerk to the
clerk of the Court of Crfmiul Appeala- Why should ho
pay ror the trensaript? The ‘rule is stated in Taxaa Jur-
iaprudenco,Vol. 4, page 456, Seetion 316, au followa:
            I)
             . 0 0 It is the duty or the clerk,
      not the appellant, to make out and forward
      the transcriptto the appellate court, even
      in misdemeanoroases; and ror this reason,
      tha appael will not be dismissed beoauae of
      delay in filing the transcriptin the appel-
      late c0urt.a
           The pertinent statute8are:
           Artiale 84l. *The Clerk or a Court
     rroa which an appeel is taken shall pre-
     pare aa soon a8 practicable,a transorlpt
     in duplicate, in wery case in whioh an ap-
     peal has boon taken, which shell contain
     all the proceedingshad in the case and
Hon. Lloyd A. Wicks, Jr. - Page 4   (V-313)


      conform to the rules governing tran-
      scripts in civil cases. . . and tke
      original to be rorwarded to the Clerk
      or the Court or Criminal Appeals as
      provided in Article 843 of the Code
      of Criminal Prooedure of the State or
      Texas, 19250 Provided the Clerk shall
      not charge for the extra copyi*
            Article 043a "As soon as pre-
      pared, the clerk shall forward the
      transcriptby safe oonveyance, charges
      paid, inolosed in a securely seal*&
      envelope) dlreoted t,othe clerk of the
      Court or Criminal Appeal&*

            Tha on@ dlstilnctio~made by law batwaen
transcriptsin felbny and misdemeanor cases is that the
transoript,ain feleny oases shall have prrferenor. (or-
tic10 842, V&.C.P.)
            The case of Bdmondsea v\.State, 6 S.W. (2d)
119, is a o&se in which the dsrendant refused to pay for
the transcriptand a aotion was mada to the aourt or Crim-
inal Appeals to dismiss the o&se beeauae pb tra&scriptNas
filed. The Court said;
           "Attorneysfor the state have
     filed a motion to dismiss this appeal
     based upan twtwo
                    grounds:
           s(l) Because the trensariptin
     this case was not riled within 90 days
     after the adjournment ef the oeurt at
     whioh convictionwas had.
           "(2) Beaause the tranaeriptwas
     forwarded by the attorney of appellant
     and not by the district clerk.
           nUnder the terms of articles 843
     and 845, C.C.P., it Ss mada the duty of
     the clerk to prepare and forward the
     trenacrlpt to this court. It was said
     in Young v. State, 80 Tex. Cr. R. 594,
     21S S.W. 505:
           "'The accused is not re8pOnSiblS
     for the reoord in criminal oases. The
     olerk is required to make out and for-
     ward the transcriptto the clerk of the
     court.t
Hon. Lloyd A. Wicks, Jr. - Page 5   (V-313)   .


            *It affirmativelyappears in the
      motion that the failure to file the tran-
      script in time was au0 to the demand or
      the district clerk for his fees for mak-
      ing out the transcript. Such a fee could
      not be demanded or legally received by
      the clerk in a felony aase,"
            The motion to dismiss was overruled.
            Article 842 reads:
            “Where the Court of Criminal Ap-
      peals awards a new trial to the defendant,
      the aause shall stand as it would have
      stood in case the new trial haa been @ant-
      ed by the court below."
            That would not be possible if the defendant
has been required to suffer a part of the punishment by
paying costs im the case.
            Attorney General's Opinion No. O-166-A (1939)
is pertinent to your inquiry, and we enclose a copy 0r it
for your information. That opinion holds, among other
things, that the County Clerk cannot compel the defendant
to pay the cost of the transcript,in a criminalproceed-
ing, before it is sent up on appeal.
            We are of the opinion that the County Clerk
may not require the defendant to pay for the transcript
in a misdemeanor case in order to perfect his appeal to
the Court of Criminal Appeals. Ii the case is arrimel,
the cost of the transcriptmay be colleoted from the de-
fendant as other costs are collected.




           The County Clerk is not authorized
     to require a defendant in a misdemeanor
     case to pay for the transcript in order
     to perfect his appeal to the Court of Crim-
     inal Appeals, If the case is affirmed, the
     cost of the transcript may be collecteafram
Hon. Lloyd A. wicks, Jr. - Page 6   (V-313)


      the defendant as o$her costs are col-
      lected. F&noason v‘.State, 6 S,W,
      (2rl)119; Article 841, V.C.S.; Opinion
      No. O-166-A.
                              Yours very truly
                                          OF TEXAS
                          ATTORNEY OzsNltRhz,


                          By
                           s?f--*~+
                              W. T. Wil.lislr.3
WTW:mmo:wb                    Assistant
