Hon. Merritt F. Hines
County Attorney
Midland County
Midland, Texas
Dear Sir:           Opinion No. 0-1335-A Reconsideration
                    Re: Payment of costs in connection-with
                         the prosecution of offenses under
                         Art. 567b, Vernon's Penal Code.
        We are in receipt of your request for a reconsldera-
tlon of our Opinion No. o-1335, especially ln respect to the
first question answered therein.
       We quote from your letter as follows:
       "This will acknowledge receipt of your above
   designated opinion of recent date, which, I be-
   lieve, correctly states the law relating to the
   matters therein contained with probably one ex-
   ception, and on that I would appreciate a fur-
   ther expression.
       "I am sure you have at hand the questions I
   have posed, so I will not re-state them here.
       'In your first paragraph beginning on page 4
   of your said opinion, you say as follows:
        "'Answering your first question, if a
     defendant is convicted of a felony for
     swindling with a worthless check under
     Article 567b, Vernon's Penal Code, it is
     our opinion that costs collected from him
     are payable into the State Treasury in
     accordance with the provisions of Article
     1018, Code of Criminal Procedure and the
     officers to whom costs are due look to
     the state for the payment of same; If
     a defendant, on the other hand, is con-
     victed of a misdemeanor for swindling with
     a worthless check under Article 567b, those
     costs of the officers for lssulng and serv-
     ing process which are charged against the
    Ron. Merritt F. Hines, page 2         0-1335-A


           defendant and paid by him are payable in-
           to the State Treasury, but there is no ap-
           propriation available for the payment by
           the state of the costs of officers for is-
           suing and serving process In misdemeanor
           cases under ArtFcle 567b.l'
            "Now, this interpretation,of the statutes
        leaves the officers in counties that are operat-
        lng under the fee system in the following fix:
        In misdemeanor casesunder Article 567b; Vernon's
        Penal Code, the officers do the work required of
        them, get convictions, and the costs adjudged a-
        galnst the defendants, collect thensame, and'then,
        If they follow this interpretation, pay all costs
        so collected into the State Treasury, knowing all
        the while that they are not going to be reimbursed
        by the State because no appropriatfon has been
        made for that purpose, and hence they do the work
        for nothing."
            Section 5 of Article 567b, Penal Code of Texas, reads
    as follows:
            'In all prosecutions under sections 1, 2,
        and 3 of this Act, process shall be issued and
        served Fn the county or out of the county where
        the prosecution is pending and have the same
        binding force and effect as though the offense
        ~JJ::~prz$c;zE;Lwere a felony; and all officers
             w           ng w    process in or out of
        the counTwherein   the prosecution is pending,
        and all witnesses from within z without the
        county wherein the prosecution is pending, shall
        be compensated In like manner as though the of-
        fense were a felony in grade." (Underscoring ours)
            Article 1018, Code of Criminal Procedure, provides:
            "When the defendant is convicted, the costs
       and fees gald ba t& State under this title .'
       mtle    15 - Criminal Actions) shall b 3 charge
       against him, extent whensentenced to death or
       to lmpr1sonment for life, and when collected
       shall be paid into the State Treasury." (Paren-
       --
       thetical Insertion and underscoring ours).'
.
            ,It is obvious from~the plain terms of SectLon 5 of
    Article 567b, above quoted, that the only officers affected
    thereby are officers who issue or serve process In and out of
    the county or do both.
Hon. Merritt F. Blnes, page 3         0-1335-A


        In our original opinion No. O-1335 we called atten-
tion to the following facts:
        P,irst,that under Article 567b, Lf a defend-
    ant Is convicted of swindling with a worthless
    check, the offense is either a statutory felony or
    misdemeanor condltloned'upon the penalties set out
    in Section 4 of the Article.
        Second, that if the amount of money Involved
    is $50;00 or more, or if a third conviction is ob-
    tained, then the offense is a felony, and the appro-
    prlatlon'under H-B; 257, 46th Leg., the Judiciary
    Appropriation Bill, is available for the payment of
    costs by the state to officers.
        Thirdly, if the amount Involved is less than
    $50.00 on first and second convictlons, then the
    offense is a misdemeanor, and the appropriation for
    the current biennium provided in H.B. No. 257, supra,
    Fs not available for compensating officers issuing
    and serving process Fn or out of the county whereln
    the prosecution of such a misdemeanor under Article
    567, supra, Is pending.
        See our opinions Nos: O-1135 and 0-1567.
        Fourthlg, It was pointed out that under Arti-
    cle 567b, all prosecutions - whether felonies or
    misdemeanors - are placed upon the same basis for
    the purpose of compensating officers issuing and
    serving process in or out of the county wherein the
    prosecutions under the Act are pending.
        Furthermore, in opinion No. O-l 35, in construing Sec-
tion 4 of Article 567b, together with Aa title 1018, Code of
Criminal Procedure, we reached the conclusion that all costs
collected from a defendant convicted either for a felony or
a misdemeanor under Article 567b are payable into the State
Treasury. In so holding, we relied upon the flnal phrase of
Article 1018,~supra, which reads as follows: "and when collect-
ed shall be paid Into the State Treasury."
        The result of such a holding would have an extremely
harsh effect upon officers issuing and ~serving process in mis-
demeanor cases under Article 567b, because although they col-
lected fees and costs from the defendant and turned them over
to the State Treasury, there.Is no appropriation available for
the payment by the State of the fees and costs oftofficers for
issuing and serving process Fn misdemeanor cases under Article
                                                           .     .




Hon. Merritt F. Hines, page 4         0-1335-A


567b - This Is true even though Section 5 of Article 567b
states that compensation shall be "in like manner as though
the offense were a felony in grade." Of course, in the felony
cases under the Act, the approprlatlon under the Judiciary
Appropriation Bill would provide the funds for payment of
fees and costs by'the State, but here also tt would be ex-
tremely circuitous to have the costs and-fees paid.to officers
forwarded to the State and then payment made by the State to
the officers.
        The question before us now, however, is whether or
not it Is at all necessary for the officers Issuing and serv-
ing process in or out of the county vhereln prosecutions under
Article 567b are pending to forward to the State Treasury
costs and fees paid to them by the convicted defendant in such
actions where the state has not paid such costs or IS not In
a position to make payment.
         From what has been stated above, it follows that in
the case of felonies, if the officers turned said collected
costs and fees over to the State Treasury, then the State
would have to pay the officers in turn out of the ap~pronria-
tion for such purpose. This makes for an unwarranted duplica-
tion of action.
        In the case of misdemeanors the officers who turned
over to the State the fees and costs to which they were entitled
would realize nothing since there is no appropriation out of
which to reimburse them notwithstanding the factthat under
Section 5 of Article 567b "all officers issuing and serving
process In or out of the county w.hereinthe prosecutfon is
pending, and all witnesses from within or without the county
wherein the prosecution is pending shall be comnensated in
like manner as though the offense were a felony in grade?
(Underscoring ours).
        After carefully considering Article 1018, supra, we
have reached the conclusion that it Is the object of this
statute to make only those costs and fees already "paid by
the State" a charge against the convicted defendant for the
express purpose of their payment Into the State Treasury by
the officers who collected them. Where the State has not
paid out any costs and fees, but the defendant has pald them
to the officers, there Is no need for the collected funds to
be pald into the State Treasury. It was obviously the inten-
tion of the Legislature that the State pay fees and costs in
felony cases only where the local officers did not collect
directly from the defendant previous to~~paymentby the State.
Any other construction would recognize a right of the local
officers to the payment of fees and costs by the convicted de-
Hon. Merritt F. Hines, page 5         0-1335-A


fendant and also by the State. It is apparent that only
those fees and costs previously "paid by the State" shall be
paid into the State Treasury when collected from the con-
victed defendant. Where~the State has not paid the costs
and fees, there is no necessity for the monies collected by
officers going to the State. It follows, of course, that
where fees and costshave been collected'~bythe local of-
ficers that they cannot also receive payment of costs from
the State.
        Our conclusion Is that Article 1018, Code of Criminal
Procedure, governs the disposition of fees and costs collected
from a defendant in felony cases when such costs and fees have
previously been paid to the officers by the State. Consequent-
ly, in prosecutions and convictions fin misdemeanor cases under
Article 567b, where the defendant pays fees and costs to the
officers, they may retain them. However, if there should be
titany time an available general appropriation to pay the fees
allowed officers for Issuing or serving process in such mlsde-
meanor cases, If the fees and costs have been paid by the
State, or claims have been filed with the State for such fees,
said claims approved by the Comptroller and warrant or'defici-
ency certificate Issued for same, fees and costs subsequently
collected from the defendant must be forwarded to the State
Treasury as required by Article 1018.
        We wish to call attentFon to the well-established rule
of law that costs and fees already paid by the State cannot
be collected except by execution as in civil suits.
        Ex Parte Hill, 15 3. W. 2d    14, 15;
        Ex Parte Byrd,-13 3. W. 2d    855;
        Ex Parte Smith, 8 3. W. 11
                                 2d   139.
        It has already been pointed out in this opinion that
under Section 5 of Article 567b, Penal Code, the only officers
affected thereby are officers who Issue and/or serve process
in or out of the county In prosecutions under the Act. We will
now consider the effect of this statute upon the respective
officers of the county, as follows:
        First, the county attorney. The county attorney
neither issues nor serves process, and therefore this article
does not apply to the county attorney. The county attorney is
still entItled to hFs statutory fees allowable to him in cases
of this character. In fee counties, the county attorney's
fees in misdemeanor cases of this character are still collec-
tible from the defendant as a portion of the costs, and are
still to be retaIned by the county attorney.
                                                           .       .




Hon. Merritt F. Hines, page 6         0-1335-A


          Second, the justice of the peace. Although the justice
of the peace Issues warrants and-other crlmlnal process in
misdemeanor cases of this nature, the statutes do not allow
justices of the peace any specific fee for lssulng criminal
process in misdemeanor cases. The justice of the peace is
paid by the county for his services in~each crLmlna1 case.
See Article   1052, Code of Criminal Procedure of'Texas. The
four-dollar trial fee assessed against a defendant In a mis-
demeanor case is a fee payable to the county;and is collecti-
bIe as a portion of the costs. See Article 1074, Code of
Criminal Procedure. We are of the opinion~that the trial fee
should &Ill be taxed as a portion of the costs in a case urder
this article, and be collected and paid to the county.
        Third, sheriffs, constables and arresting officers.
This article applies to the fees of sheriffs; constables and
other arresting officers for serving process, and includes the
necessary mileage in serving such process. For example, the
fees for executing warrants of arrest, serving capias profines,
serving commitments, subpoenaing witnesses and serving other
criminal process in worthless check misdemeanor cases by such
officers would clearly come within Section 5 of Article 567b,
Penal Code .of Texas. Such fees are retalned unless the State
has previously paid them in the felony cases. The are, how-
ever, other fees which sheriffs and constables tn fee counties
might retain, which would not fall into.the classification of
"fees for serving process"; for example, fees for-takFng the
approving defendant's bail bond, fees for release, etc. Such
fees as last namedwould be collectible from the defendant
as costs, and the officer entitled to same could retain such
fees.
        Fourth, the county judge. The county judge is entitled
to no statutory fee for issuing crlmlnal process, nor does he
serve any criminal process. In fee counties, the county judge
is paid a fee by the county for each criminal actton tried and
finally disposed of before him. Art: 1052, C.C.P'. The county
charges the defendant, provided he is convicted, a trial fee,
which is taxed as a part of the costs. See Article 1074, Code
of Criminal Procedure. This trial fee should be collected
from the defendant In case of convlctlon as a part of the costs,
and should be paid to the county.
        Fifth, the county clerk. Section 5 of Article 567b
will apply to the fees of the county clerk for Lssu%ng crimmi-
nal process. The fees collected by the county clerk for is-
suing crlmlnal process In such misdemeanor worthless check
cases-are collectible from the defendant as a part of the
costs, and may be retained in lieu of payment by the State.
Moreover, fees of the county clerk &her than for issuing
Hon. Kerritt F. Hines, page 7        0-1335-A


ptiocesscould be retained by the‘~countyclerk in fee'counties.
SeeArtIcle 1064, Code of Criminal Procedure of Texas, for a
detailed llat of the fees of the county clerk.
        What we have heretofore said with reference to the
collection and retention of fees by officers In connection
with the issuance and service of process applies
                                           -.    to witnesses.
        In accordance with the above reasoning, we modify our
answer to the first question of opinion Ro. O-1335 to read as
follows:
        If a defendant Is convicted ofa felony for swiiillng
with a worthless check under Article 567b, Vernon's Penal Code,
ltia our opinion that coats collected from him are'payable
Into the State Treasury as provided-under Article 1018, Code
of Criminal Procedure, where they have previously been paid by
the State but that the officers to whom fees and costs are due
may retain them when'they are paid by the convicted defendant
and not by the State; If a defendant Is convicted of a mlsde-
meanor for swindling with a worthless check under Article 567b,
those costs of the officers for issuing and servhg process
which are charged against the defendant and paid by him to
said officers are not payable Into the State Treasury, there
being no appropriation available for the payment by the State
of the costs of officers for issuing and serving process in
misdemeanor cases under
                     .~ Article 567b.
        We wish to thank you for your splendid brief which has
aided us greatly in passing upon this matter.
        Trusting that this satisfactorily clarifies the situ-
ation, we are
                                 Yours very truly
                                ATTORNEYGENERAL   OF TEXAS


DS:ob:wc                         By s/Dick Stout
                                      Dick Stout
                                       Assistant
APPROVED MAY 9, 1940
s/Gerald C. Mann
hlTORREYGEWERAL OF TEXAS

Approved Opinion Committee By s/BWB Chairman
