                ,-                       .-.




Bon. George B. Sheppard
Comptroller of PublLo Aacounts
Austin, Texas
Dear Sir2
                        opini.onRoe O-7440
                        Re:   Authority of Comptroller to
                              pay fees on criminal cases
                              which IndFctments were had
                              in 1935 but were disposed
                              of In 1946, and related ques-
                              tFon.
          Your request for an opinion has been reoeived and
carefully considered by this department. We quote from your
request as follows:
         "The Eonorable C. C. Bond, District Clerk of
    Rays County, has filed a claim Fn this department
    in which the question of llmltatlon has arisen.
    Back in the year 1935, Willis Rewton was indioted
    for the offense of burglary, the case was poperlg
    docketed on the docket of the District Court of
    Hays County and was finally disposed of by being
    dismissed in 1946.  One J. Y. Hagner wad indicted
    at the same time for the offense of forgery and
    p?SBiIl#3.This case was regularly docketed in the
    District Court of Hays County, Texas, and was peg-
    ularly disposed of by dismissal In 1946.  The
    District Clerk fee has regularly accrued In these
    oases. The fee has not been paid by the State.
          "Is the Comptroller at thLs time authorized to
     Fssue~warrant In payment of the claim of the DFBtrict
     Clerk of Hays County for fees in the above mentioned
     cases?
            'I** * *
Hon. George B. Sheppard, Page 2   (o-7440)


         “DOeB Article 1027, C. C. P. apply to District
    Court fees accruing to a Distriot Clerk or does
    Article lo27 apply only to examining trial fees?n
          Article 1026, Vernon's Code of Criminal procedure,
Title 15, authorizes the district clerk to receive eight or
ten dollars according to the number of preceding presidential
votes caBt in the county, whether three thousand or over or
1eSB than three thousand, for each felony case finally dis-
posed of without trial or dFsmFssed, or tried by jury, whether
the defendant be acquitted or convicted.
           With reference to the above fee under Artble 1026;
supra, this statute was @enstrued In an opinion rendered
January 21, 1913, found in Volume 27, page 171, of approved
opinions of this department, wrItten by the late Chief Justice
C. M. Cureton,~who was then Ftist Office Assistant to the
Attorney General, In whtch it was held that Buch fee wan Fn
the nature of a trial fee and is payable to the clerk In
offioe at the time the oase Is tried. This construction of
the statute has been consistently followed and such fee 1s
not considered "earned" until the oase is finally disposed
of either by trFa1 or di.BmisBal. The district clerk Fn
office at the time the ease Is disposed of makes the collec-
tion and reports the same in his flsoal report as earned
fees rather than his predecessor.
          Article 1027, Vernon's Annotated Code of Criminal
Procedure, provldesr
.
          "In all cases where a defendant is indicted for
     a felony but under the Indictment he may be convicted
     of a misdemeanor or 2 felony, and the punishment which
     may be aBBeSBed la a fine, j-allsentence or both such
     fine and imprisonment in jail, the State shall pay no
     fees to any officer, except where the defendant is in-
     dicted for the offense of muxder, until the aase has
     been finally dtsposed of Fn the trial court. Provided
     the provisionB of this Article shall not be construed
     as affectFng in any way the provislons of Article 1019,
     Code of Criminal Procedure, as amended by Chapter 205,
     General Laws, Regular Session, Forty-second Legislature;
     provided this shall not apply to examining trial fees to
     County Attorneys and/ar Criminal District Attorneys."
..-

      Hon. George H. Sheppard, Page 3    (o-7440)


                The plain provisions of Artlole 1027A supra, read-
      ing "the State shall pay no fee to any officer , includes the
      district clerk. Similar languagesis to be found In Article
      1019, Acts 1931. Therefore, our answer to your question is
      that the Comptroller at this time Is authorized to issue
      warrants In payment of the claim of the district clerk be-
      cause the limitation of one year applies to the time of
      dismissal (1946) rather than the tFme of filing of the case
      or the return of the Indictment. (1935)

                Article 1027, c. c. P., applies to district court
      fees accxuing to a distrlot clerk as he is an officer con-
      templated by said Article.
                Trusting that the foregoing fully answers your
      inquiry, we beg to remaFn
                                             Yours very truly
                                        ATTORNEYGPNPPALOFTFXAS


      APPROVED~OCT 21, 1946
      /B/ Grover Sellers
      ATTORNEYGENERAL OFTEXAS
      JcK:dljm:mja
      APPROVED OPINION COMMITTEE
      BY[s'/ BWP,CHAIRMAN
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