                           AUSTIN




Honorsble C-ball   K. iTord
County,Attoraey
San 3abn County
8611Saha, Texae
Deer Slrr




          Your recent re                 &an of this Departcrent
opon.ths questions a8 ar                 has been received.




                                tin% liquor in Sm ;ic4ba
                              fined .$lOO.OOand costs.. By

                     prior to the first ot January, dur-
                    the formr County Attorney, the de-
                    o the County Clerk +75.00 leaving
                 ~,44.00whioh has been peld into tt:c
                 since I went Into office January lat.
    The question arises as to who is entitled to the
    $lO,oo fee end the $lO.OO ~0ItXrdBSiOn due the CoUty
    Attorney.
Eonorible Campbell K. Ford, Fa.ge2


       _ “Under a rsling to H. E, Beaaley, County
    Auditor,,Collins County, January 16, 1940, o-
    pinion $1792, it is as follows: W:421ereonlr
    8 part OP the f'ineand costs as-6 collected, the
    mOneY eMl.~ot~d should go first to the payzent
    Of the oost and the balance, if any, to the a-
    mount or the sine.* Er. Xalters and I agree
    that he is entitled to the $10.00 fee, The
    QueStion is whether or not he is entitled to
    the $10.00 comlsslon on the ~100.00 fine? ge
    olaizm It is due him because the $,75.00paid
    before he went~out oi office wes sufficientto
    oover the fees and comlssign. Only 444.00
    has been paid since be went out of offioe on
    ~tbeSine. Does he get the full Z~lO.00corn-
    CdSSiOn, or iS be entitled t0 the ten per cent.
    Of the fine that was paid in and 813.
                                        I entitled
    to ten per csnt of the $44.00 that has been
    paia Binoe I Went i.n? The clerk is holding the
    *lo.00 commission aubJeot to your ruling.
          "Further su5gestlog that during ?Zr.gal-
    ter'a  term of offioe several cams were ap-
    pealed from oonviotions in the County Court to
    the Court of C+.inal Appeals end scpleof those
    oases will be aftfimed. When the mndats is re-
    turned Er. Kalters will insist that he is entit-
    led to the fees and comiasions under thoae con-
   *riotions that are aflimied and we want,to know
    %X'he la correct about it or will I be entitled
    to the fee and com.%ssionas his suoces8or under
    the prcviaione of the Statute? hrt. 335, 'Bern.
    Ann. St., Vol. 1, c. 527, which was construed in
    the CQSB of Flint v. Jones County, 5C 5X, 203,
    wherein it iS held *The County Attcrney who iS
    ln office when the COlleCtiOA iS SCtuelly -de
    fa entitled to the c03~;iSSionS no;r,ed
                                          in thiS
    artic1.e~3 fees in his office, and not the One
    who prosecuted the suit to jud&raent but whose
    tern of office expired before the collection
    was made.* Also und.erdecision in 66 St*,pe 48,
    BonorableCampbell      K.   Ford, Fage 3

          relying upon this etatute.end these two con-
          struotionsthereof. %X11 I~be entitledas the
          incumbent officer to the rees and commissions
          oollected under these convictionsduring Yr.
          '#alter'sterm of offioe but affirmed and col-
          lected cnder ny tern of office? Lr. ?;alters
          claims thst this article and two statutes do
          not d6aide thia question and that he will be
          entitled to all See8 and coqrmiesionncollect-
          ed on these oases.
                  We
                   would like at your earliest conveni-
          enoe to have your opinion on these questions.*
              We do not think that Article 335, Vernon*8 Annotated
    Civil Statutes is eDplIcable to the question lnvoiving the oom-
    nlsaione onxines.  etc.. but the same is fiovsrnedbr biticle
    950, Code of Criminal Froaedure, which re&s as Soliower
0              "The District or County Attorney shall be
          entitled to ten per oent OS all Sines, Sorfoituras,
          or moneys collected Sor the State or County, upon
          judgments reoovered by him; and the clerk oS the
          oourt In which said judgmnts are rendered shell
          be entitled to five per cent of said judgments,to
          be paid out of the amount then collected.*

          ma      hrtlole 3892, Vernon's Annotated Civil Statutes reads
    as rolrowa:

               "Any offioar mentioned in this Chapter who
          does not oolleat tbe maximum amount of his teea
          Sor any fiscal year and who reports delinquent
          fees for that year, shall be entitled to retain,
          when oollected, such part of such ddlinquent
          Sees as is sufrioient to complete the maximum
          oompensationauthorized by Articles 3883, 3883-A,
          and 3886 for the year in which delinquent fees
          were chn-rzed,and also retain the mount of ex-
          cess fees authorized by law, and the re:.:ainder
          OS the delinquent fees ror that fiscal year
          shall be paid es herein provided for when col-
          lected; proviCed the provisions of this Article
          shall not apply to any officer after one year
          from the date ho ceases to hold tileOffice t0
                                                                 702


EonorableCampbell II.Ford, Fage 4


    which any delinquent fee is due, end in the
    event the ofricer earning-the feea that are de-
    linquent has not oolleoted the same within twelve
    months atter he ceasea to hold the office,~the
    amount OS Sees collected shall be paid into the
    oountytreasurg. Frovlded, however, that nothing
    in this Xot precludes the payment of ex-officio
    Sees in accordanoewith Title 61 OS the Pevlsed
    Civil statutes of Tesas, 1925, as part of the
    maximum compensation. Provided, that any change
    made In this Article by this Aot shall not ap;ly
    to fees heretoSore earned.’
          Artiu&e 3891, Vernon’6 Annotated Cl&   Statutes,
reads, In part, as Sollowsr
    -* * * All current fees earned and collected
    by ofiicera named In Article 3823 during any
    riaos.1year in excess OS the maximum and ax-
    cess allowed by this Aat, and for their services
    and.Sor the servicea of their deputies end aesist-
    ante and authorized expenses, together with all
    delinquent Sees collected and not used as provid-
    ed finArticle 3892, or used to pay aalarlea OS
    deputies and asslstanto when ourrent fees are
    lnaufSicfent,shall be paid into the County Treas-
    ury in the county where the exooss aaoruod.
         *All feea due and not collected,as shown In
    the report required by Article 3897, shall be ool-
    lected by the ofticer to vihoa6orriae the fees aa-
    trued and shall be dispoaed oS by said officer in
    eoaordancewlth the provisions OS this Act. * * *R
          It is to be noted that the language used in Article
930, Code of Criminal Procedure, provides that the comniieslons
are payable to the county attorney who recovered the judgment.
          on February 24, 1932, this departzont held in an o-
pinion written by :ionorableHorrerC. DeXolfe addressed to Eon-
orable Taylor Carlisle, County Attorney, Kaufman, Texas, that
the former Coungy Attorney was entitled to the comcais~ion~on
fines, under facts similar to those stated in your inWirY-
       .




               HonorableCmpbell X. For&,   Fags 8


                         In view of the Soregoing, you are respectfullyad-
               risea that it is the opin$on or this Cepart;ont that the
               fomier County Attorney is entitled to tke corini6sione on
               tte fines &cd 113a~lso editha  to the reef3 aB provided by
               statutefor his serviosa in the cases that he tried and are
               now on appeal, r,rovlded,horejer, he has not alraady ool-
               ledted the IL-aximum
                                  mount Oi his fees fcr the year in whloh
               said fees were earned, and, provided further, thnt said fees
               nere reported by h5m as delinquent fees Scr that year, end
               are oolleotedwithin twelve rrontheafter he goes otztof off-
               1ce.
                        Trusting that tte foregoing fully~answersyour In- (
               qulry,we are



           ,
,+--            FIRST ASS.;STAN+      .'
                Al!TORJ.iEYG$I?ERAL
