                                                                      ~-882


                   TEXEATTOECNEY              GENERAL
                           OF TEXAS
PRICE  DANIEL
                             AUSTIN   11. 'I-EXAS
ATT0RNEY GENERAL



                                        November 3, 1947

               Eon. R. Y. King                Opinion No. V-421
               County Attorney
               Donley County                  Re:   Disposition to be made
               Clarendon, Texes                     of fees of the county
                                                    attorney which eccruca
                                                    during the interim be-
                                                    tween the aesth of the
                                                    county attorney and the
                                                    appointment of his suc-
                                                    ceasor.
               Deer Sir:
                         We refer to your letter of Ootober 17, 1947,
               which reads In pert as follows:
                          "On October 3rd. the ooupty attorney of
                     Don&County     died; on October 13th. the com-
                     missioners ' court appointed another county
                     attorney leaving ten dars without eny county
                     attorney. On October 7th the sheriff ar-
                     rested two men, one for drunkenness in a
                     public place, and one for driving e motor
                     vehlole while under the influence of intoxi-
                     cating liquor; both men plea guilty and peid
                     their fines and in both cases a fee wea col-
                     lected for the county sttorney. In the case
                     of drunkenness In 8 public plebe the sheriff
                     alone signed the complelnt. In the ceae of
                     ariving while intoxicated, the Distriot At-
                     torney signed the lnformstion but he did not
                     llve in the county and WRS not in the county
                     at the time of the trial.
                          "To whom do those attorneys fees belong?
                     To the District Attorney? To the County Attor-
                     ney? To the county ss general funds? Qr should
                     they be returned to,,thedefendant as fees im-
                     properly collected?
                         With reference ti,your question in the case
               where the sheriff done signed the complaint end the coun-
               ty attorney took no pert therein, this Depsrtment held in
               Opinion No. O-4599, where the county attorney was in the
               tamed forces, thet:
-




    Hon. R. Y   King - Page 2   (V-421)


              "2. If the county sttorney has not
         tsken any ection in such a cese end is not
         present end reedy to represent the Stete
         at A regular term of the justice court end
         a defends& pleads guilty at such regular
         term the county attorney would not be en-
         titled to the fee. Nor would the county be
         entitled to the fee. If no fee is due the
         county attorney it should not be charged
         agsinst the defendent."
               Therefore, since there wss no cotity ettorney
    of the county on October 7, nor hed one taken any part
    whatsoever in the case, end under the foregoing opinion,
    it is the opinion of this Depe,rtmentthat the Defendant
    could not legelly have been charged a fee for the county
    attorney and the $10.00 allowed the county attorney under
    Article 1061, C.C.P , and the ten percent of the fine al-
    lowed under Article 950, C.C.P., should be returned to
    the defendant in said cese.
              In the case of driving while intoxiceted, the
    district attorney signed the inform&ion, which may leg-
    elly be done. See Cody v State, 47 S W (28) 297. Don-
    ley County Is Included in a district In which there is a
    district ettorney end Article 1061, C.C.P., is es follows:
              "District and county ettornegs shall
         be allowed the following fees in cases tried
         in the district or county courts, or a coun-
         ty court et law, to be taxed against the ae-
         fende.nt:
              "For every conviction under the lsws
         ageinst gaming when no eppeal is taken, or
         when, on appeal, the judgment is affirmed,
         fifteen dollars.
               'For every other conviction in cases of
         misdemeenor,  where no appeel is taken, or
         when on eppeal the judgment is affirmed, ten
         aollers."
              Therefore, under the above Article end the opln-
    ion No. O-4599. It is the opinion of this Department thst
    the district ettorney eerned the $10.00 fee as well as the
    t&n per cent commission in this cease.
.   -




        Hon. R. Y. mag - Page3                    (V-421)




                      "$t aMU         be the, but




                                  V.Q.I.,provide8that the dir-
                      Artiolr,Js861,
        trlct    attoraoy         be
                              shall         00 ,LIsalary        brrlr.

                      Seotlon       3 OS *alO Aot~pawidar a4 r0ii0v8f
                      “SIO.     3     ui    fa,       00n~88i8n3         8~   +-
                   ulaites whit& may be raaard   e.ob oo&leotrd b
                 s istrlot Attorneyb ~affaotrd ?q .thlr Aesd rhr%T
                 be paid iAt    thr &3untJ @oaifMf of the OO~D-
                 tkes in whioh such,i@Os,am     la?@ed .fos the
                'aooouiat or the propez? fund.’
                      Th+Morr        * la   vmr      of   the   fomgolng~,         it   l,r ,the   ,,
        spinion  of thla. Departmat that the. dirtrict  attitfiwy
        ctmaot. pem~onally retain  such fee ad aomissgiaa byt
        should cgllrot   the mad aw ,pay, it into ~the oountf troar.-
        uryof   yew? oounty.   ‘,
                    DalrY bectlon 24 of Artictd    SOP  our State
        Censtltutlon,    said money shouU be .credltetl to the Road
        ati Brfage, Fu@l of your cbuzity.   .(Attorney Qeneral OpS.a-
        ion lo. O-6940)


                      Upon the death of the county sttorney
                and before the sppolntment of his successox?,
                attorneys fees, collected    in the county oourt
                upon’ 8, plea of guilty   should be, .returnod to
                the defendent,   If the sheriff   was thi’p~i?soa
                who signed the conplaint.
                      bre the oounti attorney I,# Urrd atid
                 the district   attorney sl ,yed the intonation
                 in a case in county m3z.r and the d?fsnaant,
                 pLeaas guilty,    tha atitornoJ’8 gee arid odnanls-
                .sion should be. ooLlqcte4     an6 pal4 into the
Hon. R. Y. King   Page 4   (V-421)


     county treesmy to the credit of the
     and Bridge Fund of the county. Sec.
     Art. 3912e; Sections 1 and 3 of Art.
     V.C.S.
                               Very truly yours
                           ATTORNEY GENERAL OF TEXAS


                                &X$fiUQkLe,
                           BY
                                 Bruce Allen
BA:djm                           Asslstent


                           APPROVED:



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