                       January 9, 1987




Honorable Dick Alcala                 Opinion No.   JM-617
District Attorney
Tom Green County Courthouse           Be: Whether a felony defendant
San Angelo, Texas   76903             is liable for fees under former
                                      article 1025 of the Code of
                                      Criminal Procedure

Dear Mr. Alcala:

      You have requested our opinion regarding the authority of the
district clerk of Tom Green County, Texas, to charge felony defendants
with costs pursuant to article 1025 of the 1925 Texas Code of Criminal
Procedure. By "costs," you refer to the fees which could formerly be
collected under that statute. The 1985 Legislature expressly repealed
article 1025 as part of a non-substantive recodification. Acts 1985,
69th Leg., ch. 269, 05, at 2342. The redraft was based 0x1the belief
that article 39120. which became effective in 1936, impliedly repealed
article 1025. See Code Grim. Proc. art. 104.002, ravisor's note
 (Vernon 1986). Youask vhether the repeal was a substantive change in
-the law and therefore invalid.

     Former article 1025 stated that a county or district attorney may
receive fees for all felony convictions obtained in the prosecution of
a criminal offense with specific exceptions. Code Grim. Proc. art.
1025 (1925). That provision provided:

             Art. 1025. In each county where there have
          been cast at .the preceding presidential election
          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 judgment 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.

             For rapresenting the State in each case of
          habeas corpus where the applicant is charged with
          felony, sixteen dollars.



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Honorable Dick Alcala - Page 2   (JM-617)




             In each county where less than 3000 such votes
          have been so cast, such attorney shall receive
          thirty dollars for each such conviction of felony
          other than homicide, and fifty dollars for each
          such conviction of felonious homicide, and twenty
          dollars for each such habeas corpus case.
          (Emphasis added).

In order to ascertain the meaning of article 1025, it must be
construed together with former article 1018, which provides in part as
follows:

            When the defendant is convicted, the costs and
         fees paid by the State under this title shall be a
         charge against him . . . and when collected shall
         be paid into the State Treasury.         (Emphasis
         added).

Code Grim. Proc. art. 1018 (1925). Thus, the state paid those fees to
the county and district attorneys for services performed by the
official. The statute did not provide any authority for the county
clerk to collect these fees from the defendant.

     With the adoption of article XVI, section 61, of the Texas
Constitution. the state was prohibited from paying fees for compensa-
tion for work performed by certain county and district officers. See
Tex. Const. art. XVI, 561. Article 3912e, V.T.C.S., was enacted=
Implement that constitutional provision. Sections 1 and 2 of article
3912e provide in part:

             Section 1. No district officer shall be paid
         by the State of Texas any fees or comissioas for
         any service performed by him; nor shall the State
         or any county pay to any county officer in any
         county containing a population of twenty thousand
         (20,000) inhabitants or more according to the last
         preceding Federal Census any fee or commission for
         any    service  by    him   performed    as   such
         officer. . . . (Emphasis added.)

Accordingly, article 3912e. V.T.C.S., impliedly repealed former
articles 1018 and 1025 of the Code of Criminal Procedure and therefore
the county clerk of Tom Green County is not authorized to charge
felony defendants with costs pursuant to article 1025. Therefore,
the 1985 legislation did not make any substantive change in the
application of former article 1025 to the collection of fees because
article 1025 was impliedly repealed before. See Code Grim. Proc. art.
104.002; see also Code Grim. Proc. art. 104.002. revisor's note
(Vernon 19r




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Honorable Dick Alcala - Page 3     (JM-617)




     You also ask whether section 13 of article 3912e. V.T.C.S., has
any effect on or relation to former article 1025 of the Code of
Criminal Procedure. We conclude that it does not.        As indicated
above, former article 1025 applied to district or county attorneys.
Code Grim. Proc. art. 1025 (1925). Section 13 of article 3912e.
V.T.C.S., was amended by the Sixty-ninth Legislature to exclude county
attorneys from its application. See Acts 1985, 69th Leg., ch. 480,
15, at 4067. Section 13 has neverapplied to the district attorney of
a county performing the functions of that office. See Acts 1935, 44th
Leg., 2nd C.S., ch. 465, 413, at 1769. Thus, the district attorney of
Tom Green County Is not affected by the provision.

     Moreover, the compensation of a district attorney is determined
by the legislature. See Gov't. Code 543.001. The salary of the
county attorney who is paid wholly from county funds are provided for
under article 3912k. V.T.C.S. Accordingly, section 13 of article
3912e, V.T.C.S.. does not have any effect on or relation to former
article 1025 of the Code of Criminal Procedure.

                              SUMMARY

             The 1985 legislation, which expressly repealed
          former article 1025 of the Code of Criminal
          Procedure, did not make any substantive change
          regarding the applicability of that       statute.
          Article   3912e, V.T.C.S,,    irapliedly repealed
          article 1025 of the Code of Criminal Procedure in
          1935. A county clerk is not authorized to collect
          this fee. Section 13 of article 3912e. V.T.C.S..
          has no relation to or effect on article 1025.




                                        J
                                        Ver   truly yo


                                             x;,
                                        JIM     MATTOX
                                        Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARYKKLLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General



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