Honorable Charles R, Martin
County Auditor
Harrison County
Marshall, Texas
Dear Sir:               Opinion No. 0-2~877
                        Re: Article 1055, C.C~.P.Fees of
                             Justice of the Peace and Con-
                             stable under facts stated.
       Your request for opinion has been received and careful-
ly considered by this department. We quote from your request
as follows:
      "The Legislature in 1939 enacted a law amend-
   ing Article 1055, of the Code of Criminal Proce-
   dure 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 court where defendant fails to pay
   his fine and lays his fine out in the County Jail
   or discharges the same by means of working 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
    is bound over to the Grand Jury and party is tried
    and convicted of the offense of driving and operat-
    ing a motor vehicle while under the influence of
    intoxicating liquor, 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 dis-
    charges the same by means of working 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 should answer ques-
    tion number one in the negative, would the county
    be liable for one-half costs to any officer for
    examining trial fees where party was indicted for
    felony, and the offense reduced to a misdemeanor.
    For instance, where party was indicted for assault
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Honorable Charles R. Martin, page 2          o-2077


    to murder,
             _   a-.felony,I and
                             ._ found guilty of a misde-
    meanor and   r‘lneor jail sentence, or both, assess-
    ed against   the defendant?"
       Article 1055, Vernon's Annotated Texas Code of Criminal
Procedure, reads as follows:
       "The county shall be liable to each officer
    and witness having costs in a misdemeanor case for
    only one-half thereof where the defendant has satis-
    fied the fine and costs adjudged against him in full
    by labor in the workhouse, on the county farm, on
    the public roads or upon any public works of~the
    county; and to pay such half of such legal costs as
    may have been so taxed, not including commissions,
    the county judge shall Issue his 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 otherwise appropriated."
       Article 1019, Vernon's Annotated Texas Code of Criminal
Procedure, reads as follows:
      "If the defendant is indicted for a felony and
   upon conviction his punishment is by fine or con-
   finement 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 shall be
   taxed, assessed and collected as in misdemeanor cases."
   -(Underscoringours)
       Article 1065, Vernon's Annotated Texas Code of Criminal
Procedure, reads as follows:
      "The following fees shall be allowed the sheriff,
   or other peace officer performing the same services
   in misdemeanor cases, to be ,taxedagainst the defen-
   dant on conviction:
       "1e For executing each warrant of arrest or
    capias, or making arrest without warrant, two dollars.
       "2. For summoning each witness, seventy-five
    cents.
       “3 o For serving any writ not otherwise provided
    for, one dollar,
       “4 D For taking and approvlng each bond, and re-
Honorable Charles R. Martin, page 3        o-2877


    turning the same to the court house, when necessary,
    one dollar and flfty cents,
       "5 * For each commitment or release, one dollar.
       "6. Jury fee, in each case where a jury is ac-
    tually 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 fractional part thereof, and his actual necess-
   ary expenses by the nearest practicable public con-
   veyance, the amount to be stated by said officer,
   under oath and approved by the judge of the court
   from which 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 war-
   rant or capias Issued from another county to the court
   or jail of the county from which the process was issued,
   for each mile traveled going and coming, by the nearest
   practicable route, twelve and one-half cents.
       "11. For each mile he may be compelled to travel
   in executing criminal process and summoning or attach-
   ing witness, seven and one-half cents. For traveling
   in the service of process not otherwise provided for
   the sum of seven and one-half cents for each mile going
   and returning. If two or more persons are mention-
   ed In the same writ, 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:
       "Justices of the peace who sit as an examin-
    ing 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 Charles R, 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's Annotated Texas Code of Criminal
Procedure, reads as follows:
       "Three dollars shall be paid by the county
   to the County Judge, or Judge of the Court at
   Law, and Two Dollars and fifty cents shall be
   paid by the county to the Justice of the Peace,
   for each criminal action tried and finally dis-
   posed 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 Three Dollars, Such Judge or Jus-
   tice shall present to the Commissioners' Court
   of his county at a regular term thereof, a writ-
   ten account specifying each criminal action In
   which he claims such fee, certified by such Judge
   or Justice to be correct, and filed with 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 is-
   sued upon the County Treasurer in favor of such
   Judge or Justice for the amount so approved.
   Provided the Commissioners' Court shall not pay
   any account OP trial fees in any case tried and
   In which an acquittal is had unless the State of
   Texas was represented in the trial of said cause
   by the County Attorney, or his assistant, Crimi-
   nal District Attorney or his assistant, and the
   certificate of said Attorney 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 judgment there was sufficient
   evidence in said cause to demand a trial of same."
       Article 1072, Vernon's Annotated Texas Code of Criminal
Procedure, reads as follows:
      "Sheriffs and constables serving process and
   attending any examining court in the examination
   of a misdemeanor case shall be 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 defen-
   dant in case of final conviction."
       The case of Ex Parte Shaffer, 92 SW (2nd) 250;'Texas
Court of Criminal Appeals, in construing Article 1019, Vernon's
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     Honorable Charles R. Martin, 'page 5        o-2877



     Annotated Texas Code of Criminal Procedure, held that a defen-
     dant convicted of a felony of driving while Intoxicated and
     sentenced to pay a fine of $100.00 could be confined to the
     county jail, county workhouse or county farm until he had sat-
     isfied the costs.
            Article 1019, supra, provides that in such cases (named
     in the statute) that the costs shall be taxed, assessed and
     collected as in misdemeanor cases. Therefore, we conclude that
     Insofar as the taxation, assessment and collection of such costs
     that such cases should be considered as 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 county would 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 a-
     bove facts, would be controlled by Articles 1052, 1071; and
     1055, supra. The fees of the constable, under the~~above,stated
     facts, would be controlled by Articles 1065, lo72 and 1055,
     supra.
            Raving answered your first question in the affirmative
     it is not necessary to answer your second question. Eowever,
     we wish to point out that Article 1027, C.C.P., supra, excepts
     cases where 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
                                     ATTORNEY GENERAL OF TEXAS

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

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