           OFFICE    OF THE ATTORNEY         GENERAL   OF TEXAS
                                    AUSTIN




we.-
--

       Eonoratle A. J. Luckett
       couty Xttoroep
       corn1 cozntg




                  Your letter ot A
       gopa or this department 00

                    "1. In a orim
                                                    an8 dooketed   ,
                                                   ported fees as
                                                    of during term
                                                    re fees *earn-
                                                    lark oolleat




                            ssent District Clerk colleat all
                           e tried or settled and final judg-
                          rine tern of present District Clerk?
                          3801 (Rev. Clv. Stat.) apply to fees
            'amYnOd', 8s wall,~tisfeee ~Uue~ and fees ~accruedf,
            amI tim'said fess psyable to i&&riot Clerk who
            has *earr,ed' 3ame?n
                  yeas to district olerks for reoor&ing sherif'fts
       accounts shall be p&ld:at the end of the tam of court in
       v;;hichthe service -as ren&raU; fess payable for mking
       tzansc?ipts on change of venue and on appeal shall be paid
       88 soon ~3 the service la perform&;   and su4h fees mentioned,
          A. J. L,uCkett', zeg;o 2
irO~OXibl.6
 --



iac;l&iq the fess for entcrinz judrj*,entin habeas corjxs
                    +*--ent upon shoq:;ingthe case Is finally
cases are not con*iiti
Bici~iOSZcl 0.f. Articles 10X, 570 nud 1034, Jernon's hnno-
tatnd Code of Criminal procedure;    !.:cComlck v. Fhepynrd
(OOr,.k;p.) 223 s. ?!. (26).213. In the obove lnstacces,
stick fees would 55 considered T&me&"      v;hen the oervlces
wer"s pcrforsed.

           Artlcle 1026, Vernoc’s Cods of Crinlnal Trocedure,
T1.tI.e13, authorizes the district clerk to receive eight or
ten dollcrs according to the nwaber of precedlne presidential
totes 2::<,';‘
            ln the county, whether three thousand or over or
less than thzee thousand, ior each felony ease, murder sx-
cepted, flhslly disposed of without trial or dlsnlsssd, or
triad by jury, whether the defendant be aoqultted or conviot-
ad.

             Ylth reference to the above fee un@sr Article
10’6)   ouga, this statute was oonstrued    in an opinion ren-
 CereQ Jamzry 21, 1913, found in Voluice 27, page 171, of
 apqoved opinions of this depart&x&,     viilttsn by the late
.Chlef Justice C. X. Cureton, who was then ylrst Office
 :,salstact to the Attorney General, ln.vhlch it was held
 that such fee was ln the nature of a trial See and Is pay-
 able to the clerk in ortic?   at the time the 0888 Is tried.
 ?hla construction of the statute   hes been oonslsti3tly fol-
 lc.?~d a;la such fee is not consiUered nearnedn until the
 ease is finally disposed of,

           such fees not considered earned until the case
Is finally dlspoocd of, the district clerk lri office at
the ti:~e the case 1s disposed of n;akss the collection and
reports sme in his fiscel report as earned fess rathsr
thauhis predecessor.

          Article 1027, Vernonfs AMOtatea      Code of Crlmlnal
iroce&ure, provides:

              "In all cases whore a dofendaat is indlct-
        ed for a felony but under the indictment he lcay
        bo couvicted of a'nlsderjeacor or a felony, and
                        which xmy be assessed is a fine,
        tho auziish~~r;snt
        jail‘sentenco or both such flno and icxprison-
        rsn.t in jeil,,t.he StRtG shall pay no feeS t0 an:-
        of:-itX%T,except v&we tha defendant 1s indicted
        for tha offszno of norCer, uSi     the oase has
        been fisnlly disposed of in the trial court.
        I)rovided the provisioas of this Article shall
        sot. ba construed as affecting in any sray the pro-
        visions of krtlcle 1019, Code of Cri2inel Pro-
        Cw?UT~, 'Et.3
                    u~xd~ed by Chapter 205, C-cnaral Laws,
Xx=.srable A. J. Luckett; Fage 5



     Ee~u1e.v Session, Forty-seaon  Legislature; pro-
     vidob this shall not apply to axoxining trial
     _et?sato County Attorneys acd/or Crizi?al Xs-
     trict 3ttorI;cyii."

          Iirticle 3.992 of Vernon*s knnotat.ed Civil Stat-
nte3 proviees:

           "Any oiticar t;entioned in this Chaj!tcr who
     Goes sot collect the msizuz    mount of his fees
     ror any fiscal year ana v:ho ra;orts delinquent
     fees for that year, shall bo entitled     to retain,
     when collected, such part ol such Celinqcont
     foes es is rjufriaient to coz9lete the maxiz~3
     cor9ensstlon authorize& by Articles 3953, 3263-A,
     end 396ti for the year in which delinquent fees
     w&e charged, and also retain ths asAomt of ex-
     cess feea authorized by law, and the reminder
     of the Celinquent fees for that fiscal year shall
     ha pai0 as herein provided for ahen collected;
     ~rovlCw!l, the provisions of this Article shall
     hot apply to any officer after one yeer from the
     Ectc he ceases to ho14 the office to which acy
     Balinquent fee is due, and in the event the of-
     ficer earning tho tees thst are delioqiient has
        t collected the same within twelve Eonths after
     2 ceases to hold ths oifice tha amount of fees
     collected shall be paia into'tho county troasurg.
     ProviSed, honevez, that nothing i?lthis Act pre-
     cludes tha .;aysient of ex-oPl"icio fee.3 iu accor8-
     acce with Title El of the i?eviso13Civil Statutes
     of Texas, 1925, as part of the nariaux compensa-
     tion. Provic',ed,that any change z&e in this
     Article by this Act shall not apply to fees here-
     tofore earsed.*

          Article B91,   Verson~s Annotated Civil Statutes,
in part, provic?es:

           n. . . All fess 8ue and sot collected, as
     sbczn in the report required   b.y Article 3897,
     ch;all '0s collzoted by the officer to whose of-
     ficn, %ho f&s accrued an5 shall be &iaposoE ot
     ',.
     my ;o:id ol"l"icerin accor0ahce with the provi-
       ,
     s;cY&cJof t?.is Act. . . ."

           33: the plclin provisions of Article 1027, supra,
rc&ir::q "the st,ite shall pay no fees.to shy officer", thia
iaclu&s t~he'  district olerk. Cizilnr language is to be
.   -




        Honorable   A. J. Lock&t,   Page 4



        founi' in Article 1019 , Acts 1931; Forty-second Legiolsture,
        Chal;ter~5.

                   Lmxxzrin,; your questions In ttieardor .~Tos~ted,
        it. is the opiuion of thia Qepartceni:

                  1:In crizinal cases, the fees of the district
        Clark are considers6 earned when the service for ~~hich sme
        are authorize8 to be charged, is parfozed.    Tk? eight or
        ten c?ollar fee proscribed in Artiale 102C, Vernon's Cede of
        Crimlna$ froceaurs, hoxever, IE not cc~;ic;s~~~ azsed until
        the case is finally %ispossd of.

                  2. Ths provisions of Article  1027, Vernon's Anno-
        tated Code of Crirnihal Procedure, apply to the district
        cierk.

                    3. In civil cases filed Wring the terse of P past
        district clerk, it is possible for both the inaurzbent and
        the past distriot,oleric to have *earned* fees taxed therein
        as costs. Uticle 3C91; Vernon's C'zvil Stetutas, applies
        as to those fees earned and collected as tvell us to all ides
        due and unoollected. All fees chargec? in civil cases due
        and u?lcollectc~ shall be collected   by the incumbent of the
        offiqc x-ether than his predecessor with Article 3892, ver-
        &on's Civil Statutes, ap$icable     to the delinquent fees of
        his pre&ecesror in'ofrice.

                                                 Yonrs   vary truly

                                             ATTOREY     GZiZZ.AL OF TEXAS
