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                    OFFICE   OF   THE   AITORNEY     GENERAL   OF   TEXAS
                                            AUSTIN
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     euc-


            Bonorable George R. Shep:.,Rrd             /T-
                                                        j
            Comptroller of Public Accounts
            Austin, Texas

            Dear   Sir;                 Qpinlon lo. O-2833



    -
            requeut as followst




                                                               the Indict-
                                                               hePt of ~001.

                                                               y jail sentsnce.
                                                       officerar oountg
                                                      e, end eheriff en-
                                                      al fees on the count




                        "If the defendant ia indicted for a felony
                   ad upon conviction his punishment la by fine or
                   confinement in the county jail, or by both such
                   fine and confinement ln the oountg jail or oon-
                   victed of a misdemeanor, no costs shall be paid
                   by the State to a,nyofficer, All costs In such
                   oases shall be taxed, assessed snd colleated as
                   in misdemeanor csres."
Honorable George H. Sheppard, Page 2


          Article 10198, Vernon's Annotated Texas Code of
Criminal Procedure, reeds es follows:
           *In all felony case8 where any officer la
     allowed fees payeble by the State for services
     performed either before or after indictment, in-
     cluding examlnlng trials before magistrates and
     hebeas corpus proceedings, no officer shall be
     entitled to fees in mozw then five oases against
     the same defendant;' provided, however, that
     where defendants are indicted and tried separate-
     ly after severance of their cesea, said officers
     shall be entitled to fees in five cases against
     each of said defendants, the same se if indloted
     and tried aeparetely for separate offensesi pro-
     vided further, that cases in which the same de-
     fendant has previously been Indicted, tried, and
     convicted prior to the date of any act or acts
     for which said defendant is again apprehended,
     indicted, and/or tried shall not be computed in
     determining the number of cases against such de-
     fendant in which such officers are entitled to
     collect fees."
          Article 1020, Vernon's Annotated Texas Code   of
Crlmlnal Proaedure, reeds as followa:
         "In each case where a County Judge or a
    Justice of the Peace shsll sit as an examining
    court in e felony case, they shall be entitled to
    the same fees alloved by lav for siailsr services
    in misdemeanor cases to Justices of the Peace, and
    ten cents for each one hundred vords for vrltlng
    dovn the testimony, to be paid by the State, not
    to exaeed Three and no/100 ($3.00) Dollars, for all his
    services in any one case.
         "Sheriffs and Constables serving process and
    attending any exetainingcourt In the examination
    of any felony oaae, shall be entitled to ruah fees
    as are fixed by law for similar services in mia-
    demeanor ceses in County Court to be
    State, not to exceed Four and no/l00 p@?OgJ %-
    lara in any one case, and mileage actually and
    necessarily traveled in going to the place of ar-
    rest, and for conveying the prisoner or prisoners
    to jell aa provided in Articles 1029 and 1930, Code
    of Criminal Proosdure, a8 the facts may be, but no
    mileage whatever shall be paid for summoning or
Honoreble George B. Sheppard, Page 3


     attaching witnesses In the county where case is
     pending. Provided no sheriff or constable shall
     receive from the State any sddltionel mileage
     for any subsequent arrest of a doPendant in the
     same case, or in any other case in an examining
     court or in any district court based upon the
     8ame charge or upon the same criminal act, or
     growing out of the same crlmlnsl transaction,
     whether the errest is lnadewith or without a
     warrant, or before or after indictment, and in
     no event shall he be allowed to duplicate his
     fees for mileage for making arrests, with or
     vlthout warrant, or when two or more vnrrants
     of errest or capiaaes are served or could have
     been served on the same defendant on eny one day.
          "District and County Attorneys, for attend-
     ing and prosecuting any felony case before an
     exsmlning court, shall be entitled to a fee of
     Five and no/100 (45.00) Dollars; to be paid by
     the State for each case prosecuted by him be-
     fore such court. Such fee shall not be paid
     except in cases where the testimony of the mater-
     ial witnesses to the transection shall be reduc-
     ed to writing, subscribed and sworn to by said
     witnesses; and provided further that such written
     testimony of all mater281 witnesses to the trans-
     act;on shall be delivered to the District Clerk
     under seal, vho shall deliver the dame to the
     foreman of the grand jury and take his receipt
     therefor. Such foreman shall, on or before the
     adjournment of the grand jury, return the same
     to the clerk vho shell receipt him and shall keep
     said testimony in the files of his office for a ~...
     period of five years.
           "The fees mentioned in this Article shall
     become due and payable only after the indictment
     of the defendant for an offense based upon or
     growing out of the charge filed in the exaning
     court and upon an itemized account, SVOIQ to by
     the officers claiming suuh fees, approved by the
     Judge of the District Court, end said county Or
     D.:strlctAttorney shall present to the District
     Judge  the testimony transoribed in the exeminlng
     trial, who shall examine the same end certify
     that he,hes done so and that he Plnde the testi-
Honorab3o George II. Sheppard, Page 4


     many of one or more witnessem to be materlal~
     and provided further that a certificate from the
     District Clerk, showing that the written testl-
     many of the materiel witnessen has been filed
     with said District Clerk, in accordance with
     the preaeding peregreph, shall be attached to
     said eccount before such District or County
     Attorney lhall be entitled to a fee In any felony
     came for merviaee performed bedbre an examining
     court.
          "Only one fee shall be allowed to any offi-
     cer mentioned herein for eervlces rendered In an
     exeunlnlngtrial, though more than one defendant
     18 joined In the complaint, or a oevereme 1s
     had. When defendants are prooeeded against eepar-
     ately, who aould have been proceeded egalnst
     jointly, but one fee shall be elloved in all oases
     thet could have been so joined. Ho more than one
     fee ahall be allowed to srqrofficer where more
     than one case 3.8flied against the emme defetiaat
     for offenses growing out of the same criminal act
     or tranaactlon. The account of the offlasr and
     the approval of the Dlstrlct Judge must afflrma-
     tlvely show that t&e provlaions of this Article
     have been complied with."
          Article 1027, Vernon’s Annotated Texas Code of
Crlmlnal Proaedure,reeds as follows:
          "In 811 ceses where e defendant la lndloted
     for a felony bu$ under the Indictment he may be
     convicted of a misdemeanor or a felony, and the
     punishment vhlch may be assessed la a fine, jail
     sentenoe or both such fine and lmprleomaent in
     jail, the Stete shall pay no fees to any officer,
     except vhere the defendant is Indicted for the
     offense of murder, until the case has been flnal-
     ly disposed of in the trlel court. Provided the
     provisions of this Article shall not be construed
     es affecting in sny vay the provisions of Article
     1019, Code of Criminal Procedure, ea wended  by
     Chapter 205, General Laws, Regular B88siOnl Forty-
     second Legisleturet Provided this shell not
     to examining trial fees to CFty   Attorneys
     Criminal Dlstrlot Attorneye.
gonoreble George B. Shepierd, Page 5


          This department held in an opinion written by
Honorable A.R. Stout, Assistant Attorney Generel dated
Bovember 23, 1933, recorded in Vol. 352, pages d-83,  ln-
clueive, Letter Opinions of the Attorney Goner&Zof Texea,
a8 follova:
          "(1). County ettorneya &... ere entitled
     to their exa&ning trial fees, after indictment,
     in all felony cases, awmmlng that their accounts
     are correct and duly epproved.
          “(2). In all murder cases, and other felony
     ceses, where the onl punishment that can be eaaess-
     ed LIBe sentenae de     pen.i~te&ierg,the officers
     are entitled to their fees,     r   dlctnleat,just
     as they have been In the past.
         “(3). In all oases, hovever, where a defendant
    Is indicted for a felony, but under the law for
    which he has been indicted, he may be conviated
    of a misdemeanor, or the punishment assessed a$ainst
    him may be e fine or both fine and jell sentenoe,
    that is, less than a felony, the State may not pay
    any money to the maglstrete, clerk or peace offl-
    cer for their services rendered In the examining
    trial of such cnses, until the same have &&rat been
    finally disposed of in the trial court."
          The ebove opinion van written prior to the passage
of the Officers' Salary Lev and epplled to officers operating
under the fee system.
          We understand that Hamilton County, Texas, operates
under the fee system.
          Sections 111, 112 and 113, Burglary, 7 Texas Jurls-
prudence, pages 869, 8'70and 871, read as follovs:
     ,,,,~l~;~,~~~~.~~ty       of Burglary end Other
                            . - According to the rule
     of the common law, the offenses of burglary and
     theft, if committed by the same transaction, ere
     merged! and hence a prosecution for one is held
     to be e bar to e prosecution for the other. This
     rule has been ebrogated in Texas.

               'IIf a house be entered in such
          manner es to be burglary, and the one
lhmorable ffeoge Ii.Sheppard, Page 6


         guilty of much buqlary ahall after    such
         entry commit any other offenae, he &all
         be punished for burglary and al80 for
         whatever other offense is mo comltted.'
              "'If the burglary van affected for
         the purpose of committing one felony,
         and the one guilty thereof shall vhlle in
         the house comait another felony, he shall
         be punIshable for any felony so ooarsaitted
         an well aa for the burglary.8

         "ill2. Second Proseoutlon. - Within the purview
    of the rule that a person may not lawfully  be tried
    a second time for the same offeme,   the orlmea of
    burglary and theft, although arlaing out of a rin-
    gle transaction, are separate and distinot. Under
    independent Indictments oonvlctlonr traybe m
    both crimerr. A convlotlon of theft does not bar a
    subsequent prosecution fop the burglary3 and a pre-
    vious prosecution for burglary does not prevent a
    prosecution for theft of property alleged  to have
    been stolen in the same transaction. The entry is
    one offense, and any offense oorrmittedthereafter
    my be prosecuted a8 another orlme. Where it appear8
    that ths defendant assaulted the oooupaut of the
    house and then burglarized the bulldlng, a proxecu-
    tion for assault vlth intent to bommlt burglary is
    not barred by a former oonvlctlon of bwglary.
    Again an acquittal of a charge of burglary vith ln-
    tent to commit rape Is no bar to a subsequent prose-
    cution for assault with intent to comnlt rape; and
    a former aoqtittal of attempt to commit rape Is not
    a bar to a subsequent prosecution for an attempt
    to commit burglary vith intent to rape.
         "In a prosecution for receiving atolen goods,
    a plea of former jeopardy baaed on a previous ao-
    quLtta1 of a charge of burglary is properly stioken
    out.
         “1113. Soinder of Burglary and Offenee Com-
    mitted After Entry. - While two distinct offenses
    may not ordinarily be charged In the same count of
    en indictment, an exception exists vhere burfl;;y
    and theft are charged in the maw count.
    either offense has been properly alleged and prov-
    ed, a eonvlctlcn of that offense ie sustainable.
Honorable George Ii.Sheppard, Page 7


     However, lt 1s improper to as5038 punishment
     for both offenses in a single judgment."
     (Undereooring ours)

          The oase of Iark vs. State, 179 SW ll52, holds
among other things, that under independent indictments con-
victions may be had for both burglary andXiZF.~Ei       out
of the same transaction.
          In th& matter under consideration here there vae
only one case ddcketed by the District Clerk i.nthe Dietrlot
Court against the defendant. The “oae6” or indictment oon-
eleted of two counts, one count ohargtng burglary and the
other charging theft. It is true that separate lndlctments
oould have been returned by the grand jury and two cauee,
bearing separate distriot court docket nwnbere, could have
been filed against the defendant, but this vae not done.
          In mswer to your first question you are reapeot-
fully advised as followsr
          (a) Article 1027, V.A.T.C.C.=.,   euprn, doea not af-
feat the fees of the county attorney, and   under the facta
stated the county attorney ir entitled to   one esamlnfng trial
fee, aeeumPng that ble account is correct   and duly approved.
          (b) Article 1027, V.A.T.C.C.P., eupra, applies to
the juetloe of the geaoe~and sheriff, and they are not entitled
to any exaalnlng trial fee from the State under *he facts
stated although one feature or count of the case charged a
felony, to-vlt, burglary, vhlch was not a reducible offense
and was abandoned, because the entire"case' was finally dle-
posed of and resulted In the conviction of defendant and Ne
punlsbment was asaeesed at a ninety-day jail sentence. Artl-
ale 1019, V.A.T.C.C.P., supra, applies thereto, and the
sheriff and justice of the peace mist oolleot OF atten@ to
oollect their fee8 by the method outlined by Article 1019,
suma.
          It la our opinion that your second question 1s
Eonarable George B. Shep;ard, Page 8


speculative and premature and ehould not be anevered by
tNe department at this time.
          Truet%g   that this satlefactorily answers your in-
qulry,we am

                                       Very truly yours
                                 ATTOHUEX   GERERAL OF TBXAS



                                             ~wln. J. FanNiig
                                                   Aeeletant

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