            THEATTORNEY                   GENERAL
                          OFTEXAS
                         AUSTXNH.'~EXAS

                          December 18, 1963

Honorable Edna Claneros             Opinion No. C-195
County Attorney
Wlllacy County                      Re:   Questions regarding
Raymondvllle, Texas                       the assessment and
                                          collection of fees
Dear Miss    Clsneros:                    in felony cases.
       You have requested the opinlon'of'thls office as
to ce,rtalnquestions regarding the assessment and collec-
tion of fees by prosecuting attorneys and district clerks
in felony cases. Willacy County haa a population of 20,081,
and cast over 3,000 votes at the preceding presidential
election.
       “1. What fee Is allowed the prosecuting
               attorney In a non-reducible felony
               case other than a felonious homicide
               and is It to be taxed as court costs
               even though the State of Texas does
               not pay such fee to said attorney?"
       Several statutes are pertinent to this and succeeding
questions, and will be quoted in part:
       Article 1018, Vernon's Code of Criminal Procedure:
            "When the defendant is convicted, the
       costs and fees paid by the State under this
       title shall be a charge against him, except
       when sentenced to death or to Imprisonment
       for life, and when collected shall be paid
       Into the State Treasury."
       Article 1019, Vernon.!6Code of Criminal Procedure:
            "If the defendant is Indicted for a
       felony and upon conviction his punishment
       Is by fine or confinement in the county
       jail, or by both such fine and confinement
       in the county jail, or convicted of a mis-
       demeanor, no costs shall be paid by the
       State to any 'officer. All costs in such


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Hon. Edna Clsneros, Page 2 (C-195)


       cases shall be taxed, assessed and col-
       lected as in misdemeanor cases."
       Article 1025, Vernon's Code of Criminal Procedure:
             "In each county where there have been
       cast at the preceding presidential elec-
       tion 3000 votes or over, the district or
       county attorney shall receive the following
       fees:
           "For all convictions of felony when
      the defendant does not appeal, or dies or
      escapes after appeal and before final judg-
      ment of the appellate court, or when the
      judgment Is affirmed on appeal, twenty-four
      dollars for each felony other than felonious
      homicide, and forty dollars for each such
      homicide.
           I,. . .n

       Article 1061, Vernon's Code of Criminal Procedure:
            "District and county attorneys shall be
       allowed the following fees in cases tried
       In the district or cbunty courts, or a county
       court at law, to be taxed against the defend-
       ant:
            "For every conviction under the laws
       against gaming when no appeal is taken, or
       when, on appeal, the judgment Is affirmed,
       Fifteen Dollars ($15.00);
            "'For every other conviction In cases
       of misdemeanor, where no appeal Is taken,
       or when, on appeal the judgment Is afflrm-
       ed, Fifteen Dollars ($15.00)."
       With reference to the first question asked, Article
1025, Vernon's Code of Criminal Procedure, patentlp requires
that the prosecuting attorney receive a fee of $24.00 where
there has been a conviction for a felony other than felonious
homicide. It is noted that the county officials of Wlllacy
County are on a salary basis, and that Article 3912e, Vernon's
Civil Statutes, prohibits the payment by the State or county



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Hon. Edna Cisneros, Page 3 (C-195)


of any fees to such officers; rather, all fees or commissions
which the county officer Is entitled to collect are still to
be assessed, but paid into the Officers' Salary Fund of the
individual county. Thus, while the prosecuting attorney may
not himself receive the fee provided for in Article 1025, such
costs should be taxed as costs of court, and, If recovered,
paid Into the Officers' Salary Fund.
       "2. What fee is allowed the prosecuting
           attorney in a felony case where the
           punishment assessed is a fine or jail
           sentence or both?"
       Article 1019, quoted above, provides that the costs in
this type of situation are to be determined as In misdemeanor
cases. Article 1061, Vernon's Code of Criminal Procedure, re-
quires that, in cases of misdemeanor conviction, the prosecuting
attorney is to be allowed a fee of $15.00, and such fee Is to
be assessed and collected as outlined in the answer to Question
No. 1, above. Further, Article 950, Vernon's Code of Criminal
Procedure, authorizes the collection of 10% of all fines col-
lected.
       “3. What fee is allowed the prosecuting
             attorney in a reducible felony case
             where the defendant Is not punished
             by confinement in the county jail or
             assessed a fine, but punished by con-
             flnement'In the penitentiary?"
       The defendant here has been convicted of a felony, and
thus the answer to this question is the same as the answer to
Question No. 1.
       “4.   What fees are allowed a District Clerk
             in felony cases in Wlllacy County, or
             stated another way, what fees should
             the District Clerk enter In the fee
             book on felony cases?"
       The District Clerk should enter the fees provided for
in Article 1026, Vernon's Code of Criminal procedure. It
should be noted that, since the State no longer pays any fees,
the $8.00 fee provided for In this statute can only be assess-
ed upon a conviction for felony. Thus no entry should be made
In the District Clerk's fee book until after conviction.




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Hon. Edna Clsneros, page 4 (C-195)


       "5. Whether the payment of court costs
            In felony cases where a defendant Is
            granted probation can be Included as
            one of the terms and conditions of
            such probation?"
       In the cases of Ex Parte Sethers, 151 Tex.Crim. 5 3, 209
S.W.2d 358 1948 , and Ex Parte Morgan, 159 Tex. Crlm. 221, 262
S.W.2d 728 I1953 I, it was held that the payment of court costs
was a necessary prerequisite to discharge from custody under
probation. However, in neither of these cases were the payment
of court costs made a condition of probation. In view of the
fact that Section 6 of Article 781d, Vernon's Code of Criminal
Procedure, the Adult Probation and Parole Law of 1957, gives
to the court jurisdiction to impose a wide range of conditions
In granting probation, it Is the opinion of this office that
the payment of court costs may be included as one of the con-
ditions Imposed. If the payment of proper court costisis not
made a condition of the probation order, of course the court
costs are due and payable at the time the probation order Is
entered. Article 781d, Sec. 11, Vernon's Code of Criminal
Procedure.

                       SUMMARY

            If a defendant is convicted of a felony
       other than homicide, in a county where more
       that 3,000 votes were cast In the preceding
       presidential election, the prosecuting at-
       torney Is allowed, by Article 1025, Vernon's
       Code of Criminal Procedure, a fee of $24.00.
       This fee Is to be taxed as court co&~, -and,
       when collected, is to be paid into the Offi-
       cers' Salary Fund.
            If a defendant Is charged with a felony
       but the punishment assessed Is a fine or jail
       sentence or both, Article 1061, Vernon's Code
       of Criminal Procedure, requires a fee of $15.00,
       and Article 950, Vernon's Code of Criminal Pro-
       cedure, required the collection of 10% of the
       amount of the fine, both of which are to be
       taxed and collected as above.
            The District Clerk of Wlllacg County
       should enter in the fee book the fees pro-
       vided for in Article 1026, Vernon's Code of
       Cz%ninal Procedure, in cases of felony con-
       viction. Such fee entry should not be made

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Hon. Edna Claneros, page 5   (c- 195)


         until conviction is had.
              In cases where probation is granted,
         the payment of court costs can be included
         as one of the terms and conditions of such
         probation.

                          Yours very truly,
                          WAGGONER CARR
                          Attorney General




MLQ:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
V. F. Taylor
Al10 Crow
John Reeves
Bill Allen
APPROVED FOR TRE ATTORNEY GENERAL
By: H. Grady Chandler                  .




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