                  THEATCORNEY                GENERAL
                              OF   TEXAS

 GERALD
      C.MANN                  AUSTXN xx. Tsxan

A-rroRNlcY   OSNBRAX.




      Honorable~F. J. Moss                 Overruled In Dart by O-1981
      Cbuntg Auditor
      Montague'Ccllnty
      Montague, Texas
      Dear Sir:                     Opinion No. o-1567
                                    Re: Payment of Officers' and wit-
                                         nesses' fees provided for In
                                         Section 5, Article 567-b,
                                         Vernon's Penal Code
             We are in receipt of your letter in which~'youquote
      part of Section 5 of Article 567-b, Vernon's Penal Code, and
      request an opinion on the following four questions:
                "1 . Under this article does the State or
             the county pay such officers and witnesses re-
             ferred to herein?
                "2 . Are the officers and witnesses herein
             referred to entitled to be paid the same amount
             as they would be entitled to if the case were a
             felony?
                #f3
                  . " Is the fee of,officers and witnesses
             herein referred to taxable against the defend-
             ant in the event of convlctlon?
                "4 . Under this article are the witnesses
             within the county entitled to be compensated
             as provided in Article 1078, Code of Criminal
             Procedure?"
             Section'5 of Article 567-b, Vernon's Penal Code
      reads as follows:
                "In all prosecutions under sections 1,'2 and
             3, of this Act; process shall be issued and
             served in the county or out of the county where
             the prosecution Is pending and have the same
             binding force and effect as though the offense
             being prosecuted ~were a felony; and all officers
             issuing and serving such process in or out of
             the county wherein the prosecution is pending,
Honorable F. S. Moss, page 2           o-1567



    and all witnesses from withln or without the
    county wherein the prosedution is pending, shall
    be compensated in like manner as though the of-
    fense were a felony In grade."
       We refer you to our opinion No. o-1135, in which,we
held that the appropriation under House Bill No. 257, 46th
Leglslature,~the Judiciary Appropriation Bill, for payment by
the State of~costs and fees to officers and witnesses in
felony cases, as provided in Chapter 2, Tltle~l5 Volume 3,
Vernon's Code of Criminal Procedure, Is not available for the
purpose of compensating officers and witnesses in similar man-
ner for first and second convictions under Article 567-b, Ver-
non's Penal Code, where the amount of money involved is less
than fifty dollars, which are misdemeanors only, but It is
available in all cases of a'thlrd convfctfon, and convictions
where the amount Involved Is fifty dollars or more, whlch.amount
to felonies Wtthln the statutory definltlon of Article 47,
Vernon's Penal Code;and that there Is no appropriation with.
which to carry out the provisions of Section 5 of Article 567-b,
Vernon's Penal Code.
       First and second convictions for violation of Sections
1, 2 or 3 of Article 567-b, supra, where the amount of money
Involved Is less than fFfty dollars are misdemeanors. See
Section 4 of Article 567-b, supra.
       Section 5~of Article 567-b refers to "all prosecutions
under Sections 1, 2 and 3 of thfs Act."
       For convictions under the Act which do not amount to
felonies, there is no approprlation.in the Judiciary Appro-
priation Act, House Bill No. 257, 46th Legislature, for the
payment of costs and fees of officers and witnesses by the
State.
       By placing all offenses prosecuted under Article 567-b,
supra, on the plane of felonies, the Legislature plainly in-
dicated its intent that the State only be liable for compensat-
ing officers and witnesses In accordance with the provisions
of Section 5.  It has already been polnted out, however, that
there Is no appropriation to take care of any"charges except
the felony prosecutions under the Act.' The State is liable
under Section 5 finthe misdemeanor cases, but there is no ap-
propriation to take care of the costs and fees In them.
       Therefore, in answer to   your first question, it is our
apinlon and you are so advised   that under Section 5 of Article
567-b, Vernon's Penal Code, It   Is incumbent upon the State to
pay the officers and witnesses   as provided, but that there is
Honorable F. J. Moss, page 3            o-1567



no appropriation available except for,such offenses as amount
to statutory felonies under Article 567-b.
       The State does not pay the fees of Nitnesses within
the county in felony cases. Article 1036, as amended, Code of
Criminal Procedure.
        Consequently, in answer to your second.question, It is
our opinion and you are so tidvisedthat tinderSection 5 of
Article 567-b, Vernon's Penal Code, officers and witnesses are
entitled to be paid the same amount as they would be entitled
to If the case were a felony with the exception of witnesses
resid1nn Fn the county who are'not Daid by the State in felonr
castes;Eher@ being no-appropriation; howe;er, at the present "
time for compensation in cases where the offense is a statutory
misdemeanor.
       Article 1018,   Code of Criminal Procedure, reads as
follows:
       'When the defendant is convicted, the costs
    and ~feespaid by the Stat& under this tltle'(TFtle
    15 i Criminal actions) shall be a charge against
    him, except when sentenced to~death or to lmprison-
    ment for life, and tihep5ollected shall be paid
    gnu Fhe State Treasury. (Parenthetical insertion
        .
       Article 1019, Code of Criminal    Procedure, provides:
       "If the defendant is indicted for's felony
    and'upon conviction his punishiiient
                                       Is by fine
    or confinement In the'county jail, or by both
    such fine and conflnemen't~inthe county jail
    or convicted of a misdenieanor,nb costs shall
    be paid bjrthe State to any officer. All costs
    in such cases ~&hallbe taxed, assessed and col-
    lected as In misdemeanor cases."
    -'-As has been poIlitedout, Section 5 of Article 567-b,~
supra, attempts to place all charges prosecuted under the A&
bn the plane of felonies. Consequently, every offense whether
8 statutory felony or 8 misdemeanor will be treated as If it
wherea felbny. This equality of treatment, however, do&not
make the felony'appropriatlon in the Judiciary Appropriation
Bill avallable for payment of costs and fees in misdemeanoti
cases, as plainly indicated in the answers to your first two
questions.
       Since from Section 5 it is apparent that the Legisla-
Honorable F. J. Moss, page 4           o-1567



ture Intended that costs be paid officers In both felony ehmges
and misdemeanor charges, this section would have the effect of
excepting offenses under Article 567-b from the provisions of
Article 1019, supra, which says that "If the defendant is in-
dicted for a felony and upon conviction his punishment is by
fine or confinement in the county jail, or by both such fine
and confinement in the county jail or convicted of a misde-
meanor, no costs shall be paid by the State to any officer."
       Where under the Act prosecutlonls for a felony, and
conviction for a misdemeanor is obtained, then costs will be
paid the officer, since.the dTstlnctFon Is abolished by Sec-
tion 5 of Article 567-b, supra, as to payment of costs and
fees in the case of felonies and misdemeanors.
       As for the application of Article lo18 under Section 5,
It is pointed out that the death sentence or life Imprisonment
is not involved In Article 567-b.  When the defendant is con-
victed of any'of the charges under Article 567-b, whether a
statutory felony or a misdemeanor, he Is subject to having the
costs and fees paid by the State charged against him since the
distinction between felonies and misdemeanors under Article
567-b has been abolished in the case of-~convlctionsunder the
Act. Consequently the convicted defendant will be charged with
costs and fees in every Instance under the Act in exactly sim-
liar manner as the convicted defendant In a felony case where
the sentence Is not death or life imprisonment.
    -. We wish to point out, however, that under Article 1.018,
supra, costs assessed agalnst the defendant aresenforceable only
under execution. Ex Parte Byrd, 13 S.W. (26) 855, and Ex
Parte Smith, 8 S.W. (2d) 139.
       In answer to your third question, It Is our opinion and
you are 'soadvised that in,accordance with the provisions of
Section 5 of Article 567-b, Vernon's Penal Code, when a con-
vPction is obtained for any offense whether a felony or a mis-
demeanor the defendant may be charged with the costs ana fees
paid by the State, because mlsdemeanors'under Article 567-b
are to be-treated exactly like felonies; and Article 1018, Code
of Criminal Procedure, is applicable In all convictions under
the Act while Article 1019, Code of Criminal Procedure, Is not
applicable.
       Article 1078,   Code of Criminal Procedure, reads as
follows:
       "Witnesses in criminal cases shall be al-
    lowed one dollar and fifty cents a day for each
    day they are in attendance upon the court, and
Honorable F. J. Moss, Page 5         o-1567


    six cents for each mile they may travel In going
    to or returning from the place of trial.'
       We have already pointed out that first, the State does
not.pay the fees of iltnesses within the county (See Article
1036, Code of Crlmlnal.Proc~edure)and second, that all of-
fenses under Article 567-b are treated as if they were fel-
onies in respect to the payment of fees and costs.
       Consequently, witnesses within the county even In the
cases involving misdemeanors under the Act are not entitled
to compensation since their status for this purpose is that
of felonies. This is the effect of Section 5 of Article 567-b.
       In-answer to your fourth question, under Article 567-b,
Section 5, witnesses withfn the county are not entltled'to be
compensated as provided in Article 1078, Code of Criminal
Procedure, since all offenses are regarded as felonies, with
costs payable by the State, and "within the county” wltneimes
do not receive payment of fees from the State in felony cases.
       As a concluding observation, we have endeavored to be
perfectly consistent in applying the various articles of the
Code of Criminal Procedure“to offenses which amount to vlola-
tions under Article 567-b and which under Section 5 of said
article "shall be compensated in like manner as though the
offense were a felony in grade."
       Trusting that we have answered all your inquiries satis-
factorily, we are
                                  Yours very truly
                               ATTORREYGEXERAL OF TXKAS

                                  By s/Dick Stout
                                       Dick Stdut
                                       Assistant
DS:LM:wc
APPXOVED DEC 16, 1939
s/Gerald C. Mann
A~ORNEXGENERAL   OF TEXAS
Approved Opinion Committee By s/%W% Chalrman
