,               OFFICE OF THE AlTOIWEY     GENERAL OF TEXAS
                                  AUSTIN

i auhwQ.Ylutn
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        Xoao~8U.e R. 0. X4aTor
        countg mlitor,  .Gtayuta Gooooty
        She-,     Terra
            .=
                   “in reprd  to t5e ibova i~f ~~r;lhtriou, !. C
         GrapsJn Co~uilty Is lirbi.0 t0 t’ls iUStiC6      Of tht!
         iajca ior h3ldia     erdnl~     trhla      in sls:le;ra32or
         C+~SCS,aad if t:ie Ju,tice   of t‘= Team is not an
          *Officer of the Court’ under Lbrt. 1055, C. C, S.*
         rlrrt  fund could n;loh fess be Qald froa, azd in
         what asses should Im rsosi7e     his fee ln tote1 snd
         which casea should is receive      tilli-ices?     l  ’ **

             Oenerally     speakiq,   offenses are divided late felonlee
and mledaaeanord.      (mtlols    47, Vernonad iumotated Mud   Cods of
Texas; auasell v, State, 36 ;3, H. 1070) .The Code, ( Art. 47, sunra)
del”initTond are as follms:

                 “An offsase which my - hot suat - be
         pmikmble     by death or b7 conflnezent in the
         panltentiarg   is a felony; every other ofienee
         13 s nlsde~tisnnor.”



lktder tha above provision,    an ofiensa   it3 a felony when it .aay Cle
punished by death or by confl!xmat        in the psaitentiary,    though
a lesser punislment may bo provided In the alteruztive;          or, stated
in another way, Lf punishmat is prescribed         altermtlvely,     aad out
of the alternatives    13 death or confine.ae:lt in the penltentiarg,
the offense   Is necessarily  a felong,tkmgh,      the jur3 is at libwty
to inrllct  eom nilder puni3tment, and rictusllp        do so.   (Z‘oods v.
a.3tec 10 3. x. 1%; Snith vi Jtate, 29 s. *. SO)

             The last pmagraph of ;3ection 17, ;,rticle                3912e,   Yer-
non’4 tiauotatod Civil Jtatutea of Texas, provides:


                 “In counties wherein the county officeto
         naad in this not aro ootiponssted on the basis of
         an annual salary, .the state of Teraa shall not be
         charged with and ehall not pay any fee or oozmlr-
         don to any precinot    officer    for any services  by
         him pertorxed,   but said officer     shall be paid by
         the oounty out of the Officers       Salary Bund; such
         fees and ~0mdse10as    as would otherwise be gaid his
         by the Gtate for such eervIces,w
              The county orriclals or Grayso~ c~mty are oon-
pfm30tad on 6n snnual sallry basla and the preci~c t OrfiC8rs
of said county are compensated on a fee basis.
                    article 1313, Varnon’a       .tnnot&ea   code or c’ri;Ilnal
?mccduro,        reads a8 follows:


               *xi the dereodant la tnatotea r0r a rd0nf
       and upon ocnvlction~s      puniskne.lt  i8 by ti.% or oon-
       finssat   ;in the county Jail, or by both suoh fine
      -and oonfionlsat     in thn oounty Jail,   or ooavlcted
       of a tisde.mm.ncr,    no Costa shall   be paid by ths
       state t0 WY 0rri03r.       All costs in such casbssball
       be taxed,    assessed and collected    &a in ~lsdeaeescot
       C0*68.*

             .    fitlola    1020, Vernon’s     -Annotated Code or &l&al
iroced~za,       prorldes,    ln gart:

                   *Ia each oaee waere D county         judge or a
       just108      af tB     peaoe shall     set .aa an axa424lng
       court in a relony ease, they shall be entitled
       to the saios fees allowed by law for slsllar   Barr-
       Ices in sdtimeanor    cases to Justices oi the peace,
       and ten cs&s tar saoh one hunixed words far wrlt-
       iog down the testinony,    to ba pa13 by tha State,
       not to eroeed three azd no/l30 (:33.00) dollars
       for all of his serrlcee    in any om ease.
               “* l * the roes    zke.ationed in this article
       shall beoozaa due and gayable only after the in-
       diotzant or the defendant r0r any 0rreirrrQbflsd
       upon or growing out or the charge tiled         in tha
       txduing     oourt and upon an i tenized acco;znt,
       acorn to by the orrleers      claldng    such fses,    ap
       provad by the Judge or tba Distrlot         Court, and
       raid county or dletriot     attorney,    shall present
       to the Distriot    Jufge the test&my       transcribed
       in the exazining trial,     who e.hall eraalne the saw
       and Certify   t&t he has done so md that he finds
       the testkonp     of one oi,sore    witnesses   to'ba mat-
       erlal;  and gmvl;led farther t.hat a oertfficatb
Honorable 2. C. Nedyea,       psga 4




          from tti District   Clerk, showing that tha writtsn
          teatIaony or the mterial     witaeaoeo has been fliled
          with aaid JIstrIot   Clerk, In aooofdahca w&h the
          preceding parayaph,     ehull be attaohedto   as16 ac-
          count before   auoh dlatrfot  or oounty attorney  shall
          be entItle   to a fee In any ralony 0”s: formaerrloea
          perrorozd before an examInIag court.

                 &Mole   1027, vernon~a ‘wtatba       Code of Crlmlnal
xhobame,       reads as r0u0ws:

                  *In all   caaea wham the abrenaant I8 in-
          dloted for felony but under the indlotsent   he nay
          be conrioted  of a a~deriwWIOr or a felOny,  and the
          punlihaent which siay be assaased is a flw,     jail
          seateace or both auoh ilne and bnprisonnent        ln jaI1,
          the .&ate ahail pay no reaa to any orricer,        exce*
          uhar* tba defendant is ~afatea far tha offense of
          auxdar, until tit3 aa8e has .$&en iiaally    diap08ed
          or to tla trial'oourt.    Prorldea the gxovisiona      of
          th.ia artlola   sbau not ba 00nstr-a    as airaoting ia
          uny way the provisions    of &%lcle   1019, Coda of Criaind
          ?rocedrYe,    as azmAe6 by Cbspter 205, Genersl LFAWS,
          2egular Lession,    42nd kgIslat,ure;  provided this
          shsll not apply to ere.nInlug trial reeo to county
          attoraays sad/or crlniaal     aiei0t   attorneya.*



               Conaldering Articles    lOlQ-N20,   azd 1027, ‘?ernon’o
 annotated  code 0r CrIzIssl   Procadure, and SootIon 17 0r srticla
 39120, Vernon’s amotatad Clr 11 Statu tad, and the oese of Zx
 8hcifer,  92 3. h. (26) 250, It is our opinion thst where a-il&e
 m        indiatad ror a relony and umn coaoiotlon       his puaiahmnt
 is by iisa or conflnezent   In the oollnty jell,    or by both such fine
 ad conrInesbat In the county jail,       or comioted   of B miadameanor,
 Grayson County la not liable     to the justices   of the pesoa wbo are
 Ooapm3ated on a Pee basis,     ror holding   exaraihlhg trlala  in suoh
 ca383.
                    .      .

    Honorable     R. CF heaves,   page 5




                    7ie now consider your seoond question.      In Opinion
     No. 04091 this department held that Artlole        1071. Vernon’s
     Annotated Code of &iutinal Procedure,      la in violation    of Artf-
     ale 5, Section 11 of our State Constitution      and, therefore,
     unconstitutional.       A copy of said opinion 1s enolosed herewith
     for your oontenlenoe.
                     In Opinion No. 04924 this department held, among
     other things,      that Artiole 1055 Vernon's AMOtEtea Code of
     Crlmlnal Prooedure, haa no applktlon        to fees due tbs justices
     of tbs peace.and oounty judger for their servloea in trying and
     finally    dieposing   oi orkalnal oaaea inaemuoh as they ore entitled
     to full feee iron the oount~ under irtiol6       1052, Vernon’s Annota-
     ted Code of Criminal Pmoedure, for each criminal aotion tried
     and finally     disposed of, lrreepective  of the oolleetlon   of or
     satleiaotion     of the judgment they render.     A copy of that opln-
     Ion is also enolosed herewith.
                   It la our opinion thatmlther   Article   1055 nor Arti-
     ale 1052, Vernon'8 Annotated Code of Criminal Procedure,      has
     any application   whatsoever to reee in examining trials.     There-
     fore,  In view of what haa heretofore   been safd, it is appared.
     that your seoond question    becomes moot and requires   no further
     dlaausaion.

                                                      Youra    very     truly
              ..- - ..__
                                              ATl'CR?EY GENZRdLOF T'RXIS

                                                    @.f7&&L&
AtL?G:ti
                                               BY
                                                          Ardell       billiams
                                                                      Assistant

     -;W:EP

     Enol.
