                         Twa~       ATITOICNEY            GENERAL

                                         OFTEXAS



   WILL       WILSON
ATTORNEYGEN~~AJ.
                                     tune 21, 1961


          HonorableNelson Quinn                  OpinionNo. WW-1079
          CountyAttorney
          Taylor County                          Re: By Article 877 of Vernon'sCode
          Abilene,Texas                              of CriminalProcedure,Is the
                                                     County bound to pay a munici-
                                                     pality a portionof the fine
                                                     and court costs collectedfrom
                                                     a defendant,who has appealed
                                                     his case from the corporation
                                                     court to the county court at
          Dear Sir:                                  law?

                   This opinionis Issuedin responseto your requestfor an
          opinionof this office concerning,whether any portion of the fines
          and costs imposedon's defendant,in a-case appealedfrom the corpo-
          ration court.by the countycourt at law shouldbe paid to the munici-
          pality from whence the appeal comes,and if so, which part shouldbe
          so paid.

                   In your letteryou~raisethe questionof the ambiguityof
          Article877 of Vernon'sCode of CriminalProcedureas it affectsthis
          matter. Articie877 reads as follows:

                       "/ct. 877.   Dispositionof fees

                       '. The fine imposedon appealand the costs im-
                       posed on appeal and.in the corporationcourt shall
                       be collectedof the defendant,and such fine,and
                       the cost of the corporationcourt when collected
                       shall be paid into the municipaltreasury."

                    The problem is to determine.whichof the phrases In the first
          clause is modifiedby the phrase, "and in the corporationcourt." We
          think that this referenceis merelyto the costs on appeal and not to
          the fine for three reasons:

                       (1) The rule that there is a singlepunishmentfor
                       a singlecrime indicatesthat one of the fines, either
                       the one assessedin the corporationcourt, or the one
                       on.appealmust be a nullity,and since the,whole,in-
                       tendmentof.the trial de nova is to assess a new fine :
                       or to set the defendantat liberty,the nullitymust
                       be the corporationcourt fine.
L   .




        Hon. Nelson Quinn,Page 2   (ww-1079)



                 (2) Had the Legislatureintendedto refer to both
                 fines and both sets of costs, it would have phrased
                 its intentby some such constructionas, "the fines
                 and costs imposedon appeal and in the corporation
                 court . . ."

                 (3) Our Court of CriminalAppealshas held that
                 a trial de novo wholly obliteratesthe action of
                 the corporatioucourt, Ex rte Jones 128 Tex.
                 Grim. 380, 81 S.W.2d70SE",,,,'
                                          , wherein it is said: ".
                  . .we deem it only necessaryto say that the lan-
                 guage of our Constitutionand statutesabove quoted
                 is so plain as to almost demandapologyfor an
                 argumentor any other citation. A trial de novo
                 literallyIs a trial from the beginningas If no
                 'formertrial had been had. Each step taken neces-
                 sary to the joiningof the issue in the superior
                 court--justas In the lower--mustbe gone through
                 with in the superiorcourt as if there had been no
                 trial at all in the lower court. If we may be
                 pardonedfor saying so, the complaintmust be read
                 or waived, such plea enteredas the accusedsees
                 fit, and the evidencemust be heard,and the
                 verdictand judgmentrenderedin accordancewith
                 law in the superiorcourt,withoutregardto the
                 evidence,plea, or manner of conductthe trial took
                 in the lower court. Shu.+ v.,~ Lempert, 55 Tex.
                 273; Ham-oldv. Darwise,10 Tex. Civ. App. 1.38,30
                 S.W. 498; .SanSaba Water C.~&.Im. Di,st,v.Sutton,
                 (Tex. Civ. App.').8‘S.W.2d319; +-to.n Salt Co. v.
                 Wells, (Tex. Civ. App.) 35 S.W.2d 454. All of which
                 means a trial in the county court of the entire case
                 anew as if there had been no trial below. See Giles
                 v. Shaw, 146 Oil. 28, 203 P. 1103. In ,Kirksey  v.
                 state, 58 Tex. Cr. R. 188, I25 S.W. 15, Judge Davidson
                 said, when an appeal from convictionin juSticecourt
                 is taken to the county court, the case shallbe tried
                 a6 if it has never been tried. Again, in Martoniv.
                 State, 74 Tex. Cr. R. 64, 1.66S.W. 1169, the same
                 great judge said that our statuteprovide6that when
                 convictionoccurs in an inferiorcourt and appeal is
                 prosecutedto the county court,the trial in the
                 county court shall be as if there had been no trial
                 In the justicecourt."

                  Having determinedthat the legislativeintentas to fines
        concerhsitselfonly with the fine imposedon appeal,the question
        occurs as to the dispositionof such fine. Article877 says the fine
Hon. Nelson Quinn, Page 3   (WW-1079)



is to be paid, along with the costs of the corporationcourtinto the
municipaltreasury. The finesassessedon appeal is in lieu of and
substitutedfor the Pine imposedby the corporationcourt.

          It is suggestedthat Article877 might contraveneSection
24 of Article 16 of the Constitutionof Texas. That Sectionlays
down this rule:

             "The Legislatureshall make provision6for
          laying out and workingpublic roads, for the
          buildingof bridges,and for utilizingfines,
          forfeitures,add convictlabor to all these
          purposes."

          There aresseveralressonswhy w6 do not find,thelanguage
in this Section coutrolling.

         First, the very languageof the Sectionimplies.th+ the
Sectionis not self-operating.It says, "The Legislatureshall
                T .ll. The natural impllcation,of
make prOViSiOU6,.                               this languageis
that broad discretion,is.leftto.the &agisl$+e aS~,tothe I+nS,
character,and proportiopof,fines,etc. to be used,onroads.,

          Secondly,this Section,if it were tO,bs interpreteda6
invalidating Article 877,;would~haveto be,shown to be an earmarking
of the funds and labor so derived. Earmarkingof funds is know to be
among the poorestmethods of financialcontrol. The gross inefficiency
that derive6from thiS~practi.ce is detrimentalto the interestsof the
people,and this fact must have been known to the framersof this
Section. It follows,therefore,that the intentof the framersmust
have been to utilize only 6UCh fines, forfeitures,and convictlabor
as was necessaryto the maintenanceof the public roads.

          Thirdly,at the time of the enactmentof this Section,which
was a part of the originalConstitutionof 1876, we are informedby
the learnedannotatorof the Vernon'sTexas Constitution,". . . the
demoralization followingthe Civil War led to an unprecedenteddis-
regard for law, and to an increasednumber of arrestsand convictions.
The prisonpopulationtrebled in a singleyear, and additionalemploy-
ment for convictshad to be found. It was thoughtthat road building
might take care of this problem. . .". Since some convictssimply
cannotbe used on roadwork,e.g. those under penaltyof death, females,
the ill, it followsthat the framersdid not intendthat ethe
availableconvictlabor shouldbe used in this way. Indeed,we can-
not assume that the framerswould have intendedto put the State in
the positionof the Sorcerer'sApprentice. We think that the framers'
likewisedid not intendto channelall the fines and forfeituresthat,,.
may be derived,from whatever soul-ce, into the supportof the public
roads.
Hon. Nelson Quinn,Page 4   (WW-1079)



          For the reasonsstated,it is the opinionof the Attorney
Generalthat Article877, V.C.C.P.me8118that upon convictionafter
a trial de novo 'fromthe CorporatiouCourt,three items shall be
collectedof the defendant,to-wit: (a) the costs incurredin the
CorporationCourt, (b) the Cost6 Incurredin the County Court,and
(c) the fine imposedon appealby the County Court. It is further
the opinionof the AttorneyGaneralthat of these,the County is to
keep only the costs incurredin the County Court and the County is
to pay over to the municipaltreasurythe costs incurredIn the
CorporationCoui-taridthe fine imposedby the CountyCouth on appeal.




            Article87’7of Vernon'sCode of CriminalPro-
         ceduremeans that when a case is appealedfrom a
         CorporationCourt for trial de novo befor the
         County Courtand a convictionresultsin the
         County Court,three Items are to be collectedof
         the defendaut,and these are the costs incurredin
         the CorporationCourt,.thecosts incurredin the
         County Court, and the fine imposedon appealby
         the CountyCourt; and It 16 the duty of the County
         to pay over to the municipaltreasurythe costs in-
         curredin the CorporationCourt and the fine imposed
         on appealby the County Court.

                                        Y-6   very truly,

                                        WILL WIISON
                                        AttorneyGeneralof Texas




OPINIONcmRFi
W. V. Geppert,Chal-

tinwardShivers
WilliamR. Hemphill
Thomas BUNS
WilliamH. Pool
R!3VIRWRDFORTRRATTGRNRYGENRRAL
By: Morgan Nesbitt
