                         February 23, 1987




Eonorable Wiley L. Cheatham         Opinion No. JM-635
District Attorney
P. 0. Box 587                      Be:   Whether a county attorney who
Cuero, Texas   77954               handles only misdemeanor criminal
                                   cases is authorized to collect fees
                                   in certain felony cases

Dear Mr. Cheatham:

     You inquire whether a county attorney in onc of the counties in
your multi-county judicial district. who only handles misdemeanor
criminal cases, is permitted to collect checks of the felony grade (in
amounts of $750 and forgeries) under article 53.08 of the Code of
Criminal Procedure and retain the fees provided therein for use in his
office.

     Article 53.08 of the Code of Criminal Procedure, Acts 1979, 66th
Leg., ch. 734, 41, at 1802, provides:

            (a) A county attorney, district attorney, or
         criminal district attorney may collect a fee if
         his office collects and processes a check or
         similar sight order if the check or similar sight
         order:

            (1) has been issued or passed in a manner
         which makes the issuance or passing an offense
         under:

             (A) Section 32.41. Penal Code:

             (B)   Section 31.03, Penal Code; or

             (C) Section 31.04, Penal Code; or

            (2) has been forged under Section 32.21, Penal
         Code.

            (B) The county attorney. district attorney, or
         criminal district attorney may collect the fee
Eonorable Wiley L. Cheatham - Page 2      (m-635)




          from any person who is a party to the offense
          described in Subsection (a) of this article.

             (c) 'fheamount of the fee shall not exceed:

             (1)  $5 if the face amount of the check or
          sight order does not exceed $10;

             (2)  $10 if the face amount of the check or
          sight order is greater than $10 but does not
          exceed $100;

             (3)  $30  if the face mount of the check or
          sight order is greater than $100 but does not
          exceed $300;

             (4)  $50 if the face amount of the check or
          sight order is greater than $300 but does not
          exceed $500; and

             (5)  $75  if the face amount of the check or
          sight order is greater than $500.

             (d) If the person from whom the fee is
          collected was a party to the offense of forgery
          under Section 32.21, Penal Code, committed by
          altering the face amount of the check or sight
          order, the face amount as altered governs for the
          purpose of determining the amount of the fee.

             (e) Fees collected under this article shall be
          deposited in the county treasury in a special fund
          to be administered by the county attorney, dis-
          trict attorney. or criminal district attorney.
          Expenditures from this fund shall be at the sole
          discretion of the attorney, and may be used only
          to defray the salaries and expenses of the pro-
          secutor's office, but in no event may the county
          attorney, district attorney, or criminal district
          attorney supplement his or her own salary from
          this fund. Nothing in this Act shall be construed
          to decrease the total salaries, expenses. and
          allowances which a prosecuting attorney's office
          is receiving at the time this Act takes effect.

     You do not suggest nor do we perceive any lack of authority for a
county attorney in one of the counties in the 24th Judicial District
to file felony complaints, to represent the state in felony matters in
your absence, and upon request to aid you in the prosecution of any




                              p.   2874                                  ‘
a

    Honorable Wiley L. Cheatham - Page 3     (JM-635)




    case in behalf of the state in the district court. Code Grim. Proc.
    art. 2.02; Tex. Cone. art. V. 521. In fact, you relate that "for
    the last forty to sixty years and probably much longer" the county
    attorneys in the district have performed such duties, and except for
    the county in question the county attorneys are presently handling
    such functions in felony cases. You state that the county attorney in
    this county, as of January 1, 1983, has

              refused to accept any felony criminal complaints,
              process felony cases, assist with the presentation
              of felony cases to the grand jury or assist in the
              trial of felony cases. or handle any matters of a
              felony nature.

         In Attorney General Opinioa MW-241 (1980) it was stated:

                  Although other public officials are specifi-
              cally prohibited from undertaking 'the collection
              of any claim for debt for others,' article
              6252-24.   V.T.C.S.. the addition of article 53.08
              to    the Code of Criminal Procedure removes any
              doubt as to whether a county attorney, district
              attorney or criminal district attorney nay do so.

    You represent that "[IIt has been brought to my attention" that the
    county attorney in question "has apparently been accepting checks for
    collection under C.C.P.. article 53.08 which were [sic1 a felony
    offense." The thrust of your inquiv appears to be whether a county
    attorney in your multi-county judicial district forfeits the right to
    collect checks (of the felony grade) when such official refuses to
    file felony complaints or participate in any phase of felony
    prosecutions. It is our opinion that the authority for a county
    attorney in your judicial district to collect any checks (felony or
    misdemeanor) under the provisions of article 53.08 is not conditioned
    upon such official filing felony complaints or participating in any
    phese of felony prosecutions. To read such a provision into article
    53.08 would require us to impose a condition the legislature never
    considered.

         Our answer to the foregoing inquiry renders your second question
    a moot issue. In it you posed the problem of what disposition was to
    be wade of fees collected by the county attorney pursuant to article
    53.08 on checks that came within the felony classification.

                                SUMMARY

                  The authority for a county attorney in one of
             the counties in the 24th Judicial District to
             collect checks of the felony grade (in amounts of




                                 p.   2875
Honorable Wiley L. Cheathax - Page 4    (JM-635)




          $750 and forgeries) is not forfeited by the county
          attorney's refusal to accept felony complaints,
          process felony cases, assist with the presentation
          of felony cases to the grand jury and assist in
          the trial of felony cases.




                                        JIM     MATTOX
                                        Attorney General of Texas

JACK HIGHTOWRR
First Assistant Attorney General

MARY RELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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