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        OFFICE    OF THE ATI-ORNEY     GENERAL    OF TEXAS

                             AUSTIN

 acmwoeMuw
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 4moroble T1 XC.Wlkinson
 County Au6ttor; Hill Gamty
 ifillnbaro   a Taxns


 Dear 32r:




                                                                         .,


                                              Gith un opinion


                                        xk of Hill County
                                         Stete of Texss the
                                         1026,   'Code of Cri:aIn-
                                         tion of tile constitu-
                                         tmnt of tbe officcr*s
                                         plication   repeal or,
                                    Code of Cri:alnnl -Pxocedwo,     :


                         District    Clerk of Ilill   Couaty au-


       or has ouch article  been expressly or by kaplicn-
       tion repealed or sugcraedad .by th3 &option of the
       constitutions1  a2endrxent an&the officer's salary
       if-w?

                    ‘.
                                    ,:                                              I’& ”
       honorable T. E. Kilhinson,        pago 2
                _




                      “3. If In anapler to question No, 2 you
                bold that it Is the duty OS the District    Clerk
                ot Hill County to collect   from a defendant in a
                orlslnol case the fees provided in Article lC’g4,
                Code of Gritninul ?rocedure, then are such f ces’
                to be charged and oollocted    in all Salon? CQSCS
                or BTOthe sa;3e to be oh;lrged end collected   only
                in felony cases in whioh the punisbmant assessed    _
                18 a Sine-or jail sentence?                                           .

                     *4..Xay the District Clerk refuse to doliver
                a transcript r0r riling on appeal 0r a criminal
                adse until the costs of proparing the 8an!o havo
                been paid or an affidavit of inability to pay has
                been Silcd?
                      “5. his it tbo duty of the District    Clerk in
                Civil cases to tax and colleot     the tees provided            .
                for in ititicle   3927 as amended in 1941 by aots OS
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                the‘ 47th Ingloluture    and in the abocnce oi the Sil-.
                lng bf an aSSidavit OS tbe inability      to pay costs,
                may the District    Clerk refuse to deliver 8 transcript
                on appeal until the same hns been~ paid by the party
                applying t h.eror or?
                      “6. Is it the duty of the Distridt Glerkof
                Kill County to charge and use diltgcnce to collect
                the Seas provided in Article 1064, G. G. P. in all
                felony cases Inwhich a conviction is obtained or
                is this drrty linitod to cases in wbiob the fu$t~$-
                ment assessed is a Sine or jail sentence?

                  Hill County has a population of 38,355 i.nb.3bitur.ts
        according to the 1940 Pederal Census and the county offXcials
        of oaid county are compensated on anannual 6aLnry basis.
                     Bectionc $ QDd 5 of Article    39126, Vernon’s Annotated
        Civil    Gtatutefj, re&::RS SOLlOWS:

                      Wectio’n  1. Do district  officer   shall be paid
                by the State oS Toxns nny Sees or comiosion      for any
                ~oc3rvicogeriormed by him; nox shall the Stxte or any
                county pay to any county officer     in any county con-
                tuining a populctlon of tncnty thousand (29,000) in-
                hebitants or 1~0x8 according to the 1:rst preceding
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          .I..           :                                            1.63




    .ye&aral Cenouo any feo ox covA3sion for any
      sorvioe by him performed as such officer;     provided,
      however, that tho aesosoor and oolloctor     of txxea
      shall oontinuo to collect    and retain for the bene-
      f.Lt of the Officerof  Salnry Fund or funds herein7
      altos provided for, all feos and oommlsslons which
      he is authorizod under the Isw to collect;     and it ‘.
     ,shall be his duty to aooount for and to pay all
      euoh monies received by him into the fund or funds
      oroated and provided for under the provisions of
      this Aot,; provided further,   thnt the provisions or
      this Scation shall not offoct the payment of costs
      in civil cases by the State, .but all such costs so
      paid shall be acoounted for by the officers     collcct-
      ing the Seme, as they are required under the provi-
      oions of this Act to ncoount for fees, coxmissionn
      and costs oollootod   from privet0 partics.’   *. *    _    ‘


         “SOO. 5.   ft shall bo the duty or all OrriW8
  to oxarge’and oolloct     in the Manner authorized by
  law all fees and oondesions      whioh 01-o per:aA.ca by
  law to be assessad and collected     for 011 Official
  service performed by them. AR nnd when 8UChfees
  are collected   they sbaXl be deposited in the Officers’
’ Salary Jund, or funds provided in this Act.        In event
  the Co3rJ1ssionore’ Court finds that the failure to
  collect any Se0 ox conniosion was dua to neglect on
  the port of the ofricor     ohargod vjith the resgonsi-    .
  bility or collecting    aaxe, the amount or such roe or
  commission shall be deduoted from the salary of such
  officer.    Before any such deduction IS msde, the Com-
  mhwioners     Court shall furnish such ofricer with an
  itemized state:;ont of the uncollected fees with which
  his   acoount is to be chur&ed, and shall notify such
  OfClear or the tine and plc:cc fox a hearing on snma,
  to dctori%ine whether such officer     ~733 guilty of neoli~-
  eence,   which tLqo for hearing shall be at Icsst ten
  dogs subsequent to the date of notlce,        Unless an of-,
  ficer lo ckmrged by 1.~ with the responsibility       or
  CollcotinS foes, the Coimnissioners Court shall not
  in any event make ony deductions’ from the authorized
  salary of such 0rfdcor.9v




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              Article 1026, Vernon’s Annotated Code of Criminal
procodufe,    provides:

              eIh eaoh oountg where there has been OfIs&
        at the precediaa      presidential   election 3000 votes
        or over, the district       olerk or orlsin.rl district
        olerk &sll. receive the following fees: Eight dol-
        lars for each felony oaee finally         disqo3e    of with-
        out trial or dismissed, or tried by jury 4v:hether
        the defendant bo ttCquittCd oc convicted;          eight QentS
        for each one hundred v:ords in each tran3CriPt on appeal
        or cban6e 0r venue; olghty cents for eaterin             Wegent
        In habeas corpus cusea, and eight cents for esch on0
        hundred words for preparing transcript          in habeas OOT-,
        pus canes.      In  no event   3hGll the  fe33  in habeac oor-
        pus  es303   exoeed eight dollars in any one case.          In
       .ench county where loss thm 3000 such votes h:lvc been
        M, east, ~~ch~clerk shall raceive ten dollarn for euch
        telony oase so dioposod of, and ten cents ror each one
        hundred-words in suoh transoripts,          and oilc dollar for
        enterin    judgxent    in cnoh habeas corpus.       The district
        clerk of any oomty shall receive fifty           cents for re-
        cording ea’ch nooount of the sheriff.“~,

            In view 0r the rOrOflOingproviulons of ,irticle         3912e,
 suma, you are respectfully        advised  that ~the District   Clerk
 of IN11 County is not entitled      to collect   rrom the State of
 Texas the fees provided for in Article 1026, Vernon's Annotated
 Coda of Crlninal i?rocctlure.      r\rtiolo 1026 Jma bczn superseded
 by the Officers’ Salary Lil\‘fof this State insofar       33 those
 Counties vihero cou;?ty official8     are couponssted  on an annual
 salary b33i3 3re 00nO0ma.
                          .
            F!e now consider youv second question..   Generally
 BPeaking, Chapter 4, Title 15 of the Code of Criminal Pxoocdure,
 Prosoribes t.he cost to bo tuxed aGainat dore%lants in a n;isde-
 mmor    case ‘upon conviction.    (See Tex. Jur.
 aad the case or Overstrcct     v. State ~dib~f+$+&~:          392*

              Article            1064, Vernonfs Irnnot%ted Code of Criminal
 hOceduro,      is    R       statute        allowing   certein   fees   t0   clerk3   of   the
 di3trict and        ooudiy in clninal cases to be p%id by the
                                    courts
 defendant upon conviction.   Said article   is contniucd in Chap-
 ter 4, Title 15 of tho Code of Crinrlnal I’rocedure.
              d
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              Article J&9, Vernon98 be3tca                     Code of Criminal
ivocodure,    provides:

           nff the defonaant 1s lndioted                 for R felony
     and upon conviction  his punishment                Is by Sine oris..,
                                                                     orisij
     conflne.mnt In the county jail,   or               by both such        .
     Sine andmcouSlne.3ent in the county                jail. or con-
     victed     of   ZI zabderganor,       no   ~05~8  shall be pnld
     by the State to any officer.                  All costs In such
     C38e8  shall be taxed, assetma                ana   00imtea      88
     in ;nL-dencanoroases.n

          As heretofore stated, Article 1064, Veinon’s Code of
Criuinal Yroceaure, prcooribes  oertain fees which are to be
yuld to the district  and county clerks by the defenaont upon
conviction In mIsde3eanor oasesc    Xn view 0S Article 1019,
eu?ra, It Is our opinion that In felony cascs~ In whioh the
pmlol~ent assessed lo R Slae or a jail sentehoe, or both Sine
and jail sentence, It Is the duty of the District   Clerk in auoh
oaes to tax, assess and collcot   the Sees providea by &tlcle
1064, supra, as In nlsdemanor cases.                    .;’

              Article 1064, supfa, has not been repealed by tho
 CfSIcers* Dalury Law of this State.       However, w!iere the Dls-
 trlct   Clerk Is oo;openoated on an annual.  basis,   the Sees colleoted
 under said article,    mot be depooited In the OfSicers( Salary
 ruad of the county.      It Is our further opinion that Article
.lGG4 d>es not authorize the District      Clerk to collect from any
 dcfendont any Sees whatsoever In a felony cam where the punish-
 mt ansessea Is lmprisonmnt In the penitentiary           or acath.   In
 Other words, If the defecdant IS Indicted for a felony end upon
 conviction his puniniment lo by Sine or aonSInezent In the county
 1311, or by both such SI;le and confinezznt in the county jail,
cr convicted of a mIsde,;lcunor,~ the Sees $rovIded by Article
 1364 suet be taxed, assessed and oolloctcd       as in nIodo;~eanor
 caL;OS,    (See the- case of Dzmte    Taylor; 155 S. i’/. I      1315)

          Vrh::tv,ac said In a.?sv:cr. to your second quest~ion
k:sbOrs your third, ma sixth questions.         Therefore, se deem
I: u3noccssury tc discuss these questions further.
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                                                                                            166



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                      ’   Yourfourth question 1s respectfully       an&ered ?n
             th0 negetive.    This Identical      question has been po3scd upun
             by the ,CCu~$~of CrI@ul        kppeuls ,ia the ca3cs of Youde v. &ate,
             21s 3.         ; Una  EaXIUa8On    v. btfit0, 6 si we  (2TjTi9,  both
             ~3303 expressly   answering, the Idontioal     question presented lu
             go~r I?quIry   In the negative.
                           With rorerenca to your fifth         question,      you sre ad-
             visea th&, Canerally upeak,inC, it 18 the duty of the Dlstriot
             Clerk     ln olvll ,ca3es to tax aad collect        the fees provided for
             In .,rtIcle     3927, Vcmon's Atnnoteted     Civil    Statutes;       however,
             the District Clark cannot refuse to doliv3r a transoript                      on
             a?paul until. the same has been puld fox by th.3 party applying
             therefor,     where there has been no affidavit          of Inability         to
             pay costs mea.          A question Identical        to your fifth         queotiou
         :   was answcrea In the nefiative by the ;iu?rer:;e          Court     of   this   State
             in the early oaso of                     m-
                                                     V.’ CostLo&      7  Tax.     460.    Stated
             another way, the Supreze Court held th3t a district                   clerk 1s not
     .       entitled to dcaand payment of Seo 8 as a condition                 precsdent to
             tho delivery of the transcript       for transsicaion           to the appellate
             Court.      ThI3 case hso been follovmd in later cme3. and we dir-
             cct your attention      to the oam of Tuyl.or v: C3rdno6, 99 S. \5’.
             411, and the Ca3e Of %xfiSla,         et 31 v. m?e 011 c~~JC?IiXXIy~           et 3L
             74 3. Pi. tea) 145, which follo%od the tiuprem Cwrt oaoe olentloned
             abme.


                         This opinion is not to be coustruad n3 pertaining
             to fee3 or compensation that the offialal    court reporter nay
             lo outltled   to for Utatouent of Beets.

                                                                Yours~ wry    truly




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