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                 E   A    ORNEY        GENERAL

                         OPTEXA~




            .

    Honorable C. 0. Murdoch
    County Attorney
    Menard County
    Menard, Texas
    Dear Sir:                 Opinion No. O-3078
                              Re: Fees due offlcera under Article
                                   1055, V.A.T.C.C.P.
              Your request for opinion has been received and
    carefully considered by this department. We quote from your
    request as follows:
              "Does Article 1055 in the C.C.P. provide
        that counties shall pay one-half of the fees
        of County Attorney, sheriff, and judge of
        court, when defendant in a misdemeanor case
        pleads 'guilty' on examining trial, and is not
        actually tried as in a regular trial ? Or
        does it provide for the payment of one-half
        of the fees only when the defendant is actually
        tried before the Judge or a jury, at a regular
        trial, not an examining trial, and when he
        pleads 'not guilty'? This article applies, I
        presume, to all misdemeanor cases, regardless
        whether in the Justice Courts or County Court?"
              Article 1055, Vernon's Annotated Texas Code of
    Criminal Procedure, reads as follows:
              "The county shall not be liable to the
        officer and witness having costs in a miade-
        meanor case where defendant pays his fine
        and costs. The county shall be liable for
        one-half of the fees of the officers of the
        Court, when the defendant fails to pay his
        fine and lays his fine out in the county
        jail or discharges the same by means of work-
        ing such fine out on the county roads or on
        any county project. And to pay such half of
        coats, the County Clerk shall issue his war-
        rant on the County Treasurer in favor of such
        officer to be paid out of the Road and Bridge
        Fund or other funds not otherwise appropriated."
Honorable C. 0. Murdoch, page 2         O-3078



          Article 1065, Vernon's Annotated Texas Cede of
Criminal Procedure, reads as follows:
          ' The following fees shall be allowed the
    sheriff, or other peace officer performing the
    same services In misdemeanor cases, to be taxed
    against the defendant on conviction:
          "1 . For executing each warrant of arrest
    or capiaa, or making arrest without warrant,
    two dollars.
          "2 * For summoning each witness, seventy-
    five cents.
         “3 . For serving any writ not otherwise
   provided for, one dollar.
         j'4
           . For taking and approving each bond,
   and returning the same to the court house, when
   necessary, one dollar and fifty cents.
          “5 . For each commitment or release, one
   dollar.
         “6 . Jury fee, In each case where a jury
   is actually summoned, one dollar.
         "7 . For attending a prisoner on habeas
   corpus, when such prisoner, upon a hearing, has
   been remanded to custody, or held to bail, for
   each day's attendance, four dollars.
         “8.  For conveying a witness attached by
   him to any court out of his county, four dollars
   for each day or fractional part thereof, and
   his actual necessary expenses by the nearest
   practicable public conveyance, the amount to be
   stated by said officer, under oath and approved
   by the judge of the court from which the at-
   tachment issued.
         "9. For conveying a prisoner after con-
   viction to the county jail, for each mile, go-
   ing and coming, by the nearest practicable
   route by private conveyance, ten cents a mile,
   or by railway, seven and one-half cents a mile.
         "10. For conveying a prisoner arrested
   on a warrant or capiaa issued from another county
.   .




    Honorable C. 0. Murdoch, page 3         o-3078


        to the court or jail of the county from which
        the process was issued, for each mile travel-
        ed going and coming, by the nearest practicable
        route, twelve and one-half cents.

              "11. For each mile he may be compelled
        to travel in executing criminal process and
        summoning or attaching witness, seven and one-
        half cents. For traveling in the service of
        process not otherwise provided for, the sum
        of seven and one-half cents for each mile
        going and returning. If two or more persons
        are mentioned in the same writ, or two or more
        writs in the same case, He shall charge only
        for the distance actually and necessarily
        traveled in the same.'
              Article 1061, Vernon's Annotated Code of Criminal
    Procedure, reads as follows:
              '~iatrict and county attorneys shall be
        allowed the following Fees in cases tried in
        the district or county courts, or a county
        court at law, to be taxed against the.defen-
        dant:
              "For every conviction under the laws
        against gaming when no appeal is taken, or
        when, on appeal, the judgment is affirmed,
        fifteen dollars.
              "For every other conviction in cases of
        misdemeanor, where no appeal is taken, or when
        on appeal the judgment is affirmed, ten dollars."
              Article 1068, Vernon's Annotated Texas Code of Crim-
    inal Procedure, reads as follows:
              'If the defendant pleads guilty to a
        charge before a justice, the fee allowed the
        attorney representing the State shall be five
        dollars. The attorney who represents the
        State.in a criminal action in a justice's
        court shall receive, for each conviction on a
        plea of not sullty, where no appeal is taken,
        ten dollars.
              Article 1070, Vernon's Annotated Texas Code of Crim-
    inal Procedure, reads as follows:
                                                           .   ,




Honorable C. 0. Murdoch, page 4         O-3078


         "No fee shall be allowed a district or
   county attorney in any casa where he is not
   present and representing the State, upon the
   trial thereof, unless he has taken some action
   therein for the State, or is present and ready
   to represent the State at each regular term of
   the court In which such criminal action is
   pending; provided, that when pleas of guilty
   are accepted in any justice court, at any other
   time than the regular term thereof, the county
   attorney shall receive the sum of five dollars.
   In no case shall the county attorney, in con-
   sideration of a plea of guilty remit any part
   of his lawful fee."
          Article 1052, Vernon's Annotated Texas Code of
Criminal Procedure, provides for the payment of certain
fees to the County Judge and Justice of the Peace by the
county, and reads as follows:
          "Three dollars shall be paid by the
   county to the County Judge, or Judge of the
   Court at Law, and Two Dollars and fifty cents
   shall be paid by the county to the Juztlce
   of the Peace, for each criminal action tried
   and finally disposed of before him. Provided,
   however, that in all counties having a popu-
   lation of 20,000 or less, the Justice of the
   Peace shall receive a trial fee of Three Dol-
   lars. Such Judge or Justice shall present to the
   Commiszlonerz' Court of his county at a regular
   term thereof, a written account specifying each
   criminal action in which he claims such fee,
   certified by such Judge or Justice to be correct,
   and filed with the County Clerk. The Commissioners'
   Court shall approve such account for such amount
   as they find to be correct, and order a draft to
   be issued upon the County Treasurer in favor of
   such Judge or Justice for the amount so approved.
   Provided the Commissioners' Court shall not pay
   any account or trial fees in any case tried and
   in which an acquittal is had unless the State
   of Texas was represented in the trial of sala
   cause by the County Attorney, or his assistant,
   Criminal District Attorney or his assistant, and
   the certificate of said Attorney is attached to
   said account certifying to the fact that said
   cause was tried; and the State of Texas was repre-
   sented, and that in his judgment there was suf-
   ficient evidence in said cause to demand a trial
   of same."
Honorable C. 0. Murdoch, page 5         0-3078


          Trial fees are assessed under the provisions of
Article 1074, Vernon’s Texas Code of Criminal Procedure,
which reads as follows:
         "In each case of conviction in a county
   court, or a County Court at Law, whether by
   a jury or by a Court, there shall be taxed
   against the defendant or against all defendants,
   when several are held jointly, a trial fee of
   Five Dollars, the same to be collected and paid
   over in the same manner as in the case of a jury
   fee, and in the Justice Court the trial fee shall
   be the sum of Four Dollars."
          You are respectfully advised that it is the opin-
ion of this department:
          1. There is no necessity for an examining trial
in a misdemeanor case when the defendant pleads guilty to
same and the court has jurisdiction of the offense. For
example, If a defendant was charged In the justice court
with the offense of public drunkenness and the justice had
started an examining trial and if the defendant stated to
the court that he desired to plead guilty the justice should
abandon the examining trial and enter a judgment against
the defendant. Under such circumstances no fees should be
allowed for an examining trial. The regular fees provided
by law would be payable under such circumstances.
          2. The fees of the justice of the peace and county
judge for their services in the trials of misdemeanor cases,
both on pleas of guilty and contested cases, are payable by
the county as provided by Article 1052, V.A.T.C.C.P., supra.

          3. If the defendant is legally convicted of a
misdemeanor the sheriff and county attorney would be entitled
to the fees earned by them and It would be immaterial as to
whether the defendant plead guilty or plead not guilty and
contested the case, except in the case of the county attorney,
who would receive a smaller fee on a plea of guilty in
justice court. If the defendant was not able to pay the fine
and costs the same could be collected as provided by Article
1055, V.A.T.C.C.P., supra.
          You are further respectfully advised that it is the
opinion of this department that Article 1055, V.A.T.C.C.P.,
zupra, applies to all misdemeanor convictions where the de-
fendant is unable to pay the fine and costs, regardless of'
whether or not the conviction was had in the justice, County,
county court at law, or district courts. See opinion No.
Honorable C. 0. Murdoch, page 6        0 -3078


O-2877 of this department, a copy of which   Is enclosed here-
with for your information.
                              Very truly yours
                            ATTORNEY GENERAL OF TEXAS            .




                              By s,fWm.J. Fanning
                                   Wm. J. Fanning
                                        ,Asslstant
WJF:GP:ac
ENCLOSURE

APPROVED FEB 20, 1941
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
