Honorable Ben Niedecken, Jr.         Opinion No. C- 789
County Attorney
Jones County Courthouse              Re: Payment of court
Anson, Texas                             costs to Lynn
                                         County on a felony
                                         case wherein the
                                         case was trans-
                                         ferred %o Lynn
                                         County from Jones
                                         ~~~;;u~ a change
Dear Mr. Niedecken:                              .
     Your recent letter to this office requests an opinion
concerning the'followlng facts:
          "Cause No. 4583, State of Texas vs. Gerald
     D. Knight, in Jones County, Texas, was filed as
     a result of Grand Jury Indictment against the
     accused. The defendant's attorneys asked that
     this case be transferred and the District Judge
     of the 104th Judicial District of Texas, upon
     such request, transferred this case to Fnn County,
     Tahoka, Texas. It was filed in the District Court
     under Cause No. 1315, State of Texas vs. Gerald
     D. Knight.
          "The State of Texas, through its District
     Attorney, made it known that they intended to seek
     the death penalty in this case; however, the case
     was tried upon the insanity of the defendant. The
     defendant was found insane at the time the crime
     was committed and sentenced to the Rusk Mental
     Hospital, Rusk County, Texas.
          "We, of Jones County, Texas, have received
     a bill from the District Clerk of Lynn County,
     Texas, as follows:
     A.   Two attorneys for three days work
          @ $100.00 per day                      $600.00
     B.   $250.00 for investigationand
          expert testimony                        250.00
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Honorable Ben Niedecken,,Jr., page 2 ‘(c-789 )


     C.   Jury fees                                          160.00
     D. Court cost8                                          32.00
     E.   Sherlff's fees as follows:

          (1) Due Lubbock County for
                  board of prisoner               $141.00

          (2)     Special Night Deputy,
                  Lynn County, Texas                168.00

          (3) Night Guard                           12.00

          (4) Pay Security Guard at           *
              Hearing                               44.00

          (5) Transporting the defendant
              to Big Spring State Hospital
              for doctorls examination     lo.24

          (6)     Meals for twelve officersat
                  hearing of the defendant          24.84

          (7) Transporting the prisoner from
              ,.Lubbock
                      County Jail to Rusk Mental
              Hospital, Rusk County, Texas, as
              follows:
                                                     16.51
           Total amount    lJrnn   County Sheriff            416.69
          "Before the case was transferredto IJrnn
     County the District Judge of Jones County, Texas,
     authorized the payment of $129.40 for the purpose
     of investigationof this case."
     You have asked the followingquestions concerning the
above st.atedfacts:
          "1. Are we obligated to pay the Court costs
     of $32.00 as billed by Lynn County?
          "2. Are we obligated to pay the $250.00 for
     investigationand expert testimony in addition to
     the $129.40 already paid?
            "3.    Are we obligated to pay the Lubbock
                              -?-QO-
Honorable Ben Niedecken, Jr., page 3   (C-789 )


     County Jail for the board of prisoner in the
     amount of $141.00?
          "4. Are we obligated to pay a Special Right
     Deputy $168.001
               Are we obligated to pay a Night Guard

          "6. Are we obligated to pay a Security
     Guard at the Hearing in the amount of $44.00?
          "7. Are we obligated to pay for transporting
     the defendant to B&Spring State Hospital for
     doctor's examination in the smount of $10.24~
          "8. Are we obligated to pay for meals for
     twelve officers at the Hearing of the defendant
     in the amount of $24.84?

          “9. Are we obligated to pay for the trans-
     porting of prisoner from Lubbock County Jail to
     Rusk Mental Hospital, Rusk County, Texas, In the
     amount of $16.511"
     In answer to question Ao. 1, it is the opinion of this
office that Jones County is under no obligation to pay coWt
costs In the amount of $32.00. There is no authority In the
statutes of the State of Texas which would authorize an
initiating county to pay court costs to another county on
a change of venue.
     In answer to question No. 2, it is the opinion of this
office that Jones County is authorized to pay a maximum of
$250.00 for Investigation and expert testimony. Article
26.05, Section 1, Code of Criminal Procedure, provides,
          "A counsel appointed to defend a person
     accused of a felony or a misdemeanor punishable
     by Imprisonment shall be paid from the general
     fund of the county in which the prosecution was
     instituted according to the following schedule:
          II
           ....
          l.(c) For expenses incurred for purposes of
     investigationand expert testimony, not more than
     $250.00."
                          -3790-
Honorable Ben Nledecken, Jr., page 4   (c-789 )


Jones County, having already paid $129.40 is only authorized
to pay out the additional amount of $120.60.
     It 1s the opinion of this office that Jones County is
obligated to pay for all expenses incurred on account of
the safe keeping of the defendant. Article 54.02, Section l(b),
Code of Criminal Procedure, specificallyprovides that
Articles 1037 through 1056, Code of Criminal Procedure of
Texas, 1925, are not repealed. Article 1037, Code of Criminal
Procedurg.provides:
          “Each county shall be liable for all expenses
     Incurred on account of the safe keeping of prisoners
     confined In jail or kept under guard, except
     prisonersbrought from another county for safe
     keeping, or in habeas corpus or change of venue;
     in which cases, the county from which the prisoner
     is brought shall be liable for the expense of
     his safe keeping.”
Whether or not the specific amounts billed to Jones County
are reasonableand proper, are questions of fact which can
not be passed upon by this office. In answer to question
No. 3, concerningthe payment of $141.00 for the board of
the prisoner, it is the opinion of thju office that Jones
County is obligated to pay such amount, if this amount is
the actual expense incurred for the feeding of the prisoner.
This office has held in prior opinions that a sheriff can
not be paid any specific sum for the boarding of prisoners,
but only for actual expense incurred by him in feeding the
prisoners in his custody. Attorney General’s Opinions Nos.
O-1242, O-2379, V-1232. ._
      In’answerto questions No. 4 through No. 6, it is the
opinion of this office that Jones County is obligated to
pay these amounts, If such amounts are within the limits
of Article 1041, Code of Criminal Procedure. Attorney
General’s Opinions Nos. O-2742, O-925.
     In answer to questionsNo. 7 and No. 9, it is the opinion
of this office that these expenses were not Incurred on
account of the safe keeping of the defendant in this case.
Since.these expenses were not incurred pursuant to Article
1037, Code of Criminal Procedure, there is no authority
which would authorize the payment of these amounts by Jones
County. In regard to question No. 8, you are advised that
Article 1041, Code of Criminal Procedure, precludes any
allowance for board of a guard or matron employed in the
safe keeping of prisoners.
                         -3791-
      .



Honorable Ben Nledecken, Jr., page 5       (C-789   )


                              SUMMARY

          There Is no authority in the statutes of the State
          of Texas which would aut.horisean initiating county
          to pay court costs to another county on a change of
          venue.
          Article 26.05, Section l(c), Code of Criminal Pro-
          cedure, provides that the maximum amount to be
          paid by a county in which a prosecutionwas instituted
          for investigationand expert testimony Is $250.00.
          The commissioner'scourt of Jones County is unauthorized
          to pay an amount In excess of $250.00.
      While Article 1037 provides that the initiating
      county shall be obligated to pay expenses Incurred
      on account of the safe keeping of the defendant,
      Article 10&l, Code of Criminal Procedure, limits
      the amount which can be paid for guards.
                                         Very truly yours,
                                         WAGGONER CARR
                                         Attorney General of Texas


                                         &mza&
                                            Assistan; Attorney
TWM:lk
APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Robert Owen
Douglas Chilton
Malcolm Quick
APPROVED FOR THE ATTORNEY GENERAL
By:   T. B. Wright

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