            THE    ATTORNEY           GENERAL
                        OFTEXAS




Hon,dGeorge 8. Sheppard
Comntroller of Public Accounts
Austin, Texas
Dear Sir:
                           Opinion No, O-7471
                           Re:    Lfhethercertain officers can
                                  collect a fee accruing after
                                  indictment from the State in
                                  a felony case pending in the
                                  District Court before final
                                  disposition of the case, re-
                                  gardless of whether the case
                                  is reducible or non-reducible,
                                  including murder.
Your request for an opinion has been received and carefully con-
sidered by this department. We quote from your request as follows:
     "After reading your Opinion No. O-7440 and the opinion
     addressed to Honorable E. L. Shelton, County Auditor of
     Johnson County, on November 23, 1933, signed by A. R. Stout,
     Assistant Attorney General, and also your opinion addressed
     to this department on October 7, 1935, signed by Leon 0.
     Eases, this department is confused as to whether we 'are
     authorized to pay fees to any officerwhether it be sheriff,
     constable, county attorney or district clerk, for fees
     accruing to him in a felony case pending in the District
     Court; that is, fec,saccruing after indictment regardless
     of whether the case is reducible or non-reducible, including
     murder.
      "1 shall, therefore, thank you to advise this department
      whether the sherifr, constrble, clerk;county attorney or
      any other officer can collect a fee accruing after indict-
      ment from the State in a felony case pendin::in the District
      Court beforei'inaldisposition of the case, regardless of
      whether the case is reducible or nonreducible, including
      murder."
For the sake of brevity and to avoid as much as pos:;iblerepeti-
          will define the terms ?-educible cases" and "non-
tions, T>fe
reducible cases", which terms are used .inyour request.
Hon. George H. Sheppard, Page 2   o-7471


     Article 47, Penal Code, in part, is as follows:
      "An offense which may -- not must --be punishable by
      death of confinement in the penitentiary is afalony;
      every other offense is a misdemeanor.n
Where a person is charged with the commission _ofan offense of the
grade-of feldny,'whe$her~by comDlaintfilsd~'in &n:examiping'.cdnrt
or by indictment in the District Court, and under the law the
only punishment which may be assessed ia death or confinement in
the State penitentiary, such an offense is a nnon-reduciblen
one. For example, burglary, forgery, arson, bigamy and theft of
cattle, horses, sheep, goats or hogs.
A "reducible case" is also one of the grade of felony, but under
the law and the indictment the defendant may be found guilty of a
felony and sentenced to death or to serve a term in the State peni-
tentiary, or may be found guilty of a misdemeanor. For example,
is theft of personal property of the value of '#50.00,for under
such an indictment, the defendant may be found guilty of the of-
fense of theft of personal property of the value of less than
$50.00, a misdemeanor.
 There is also another class of "reducible cases", which may have
 contributed to your confusion because of the incomplete answers
 found in the two opinions referred to in your request andwritten
 by Assistants of former Attorneys General. This class of reducible
 cases embraces all felony cases where the law fixes the punishment
 at confinement in the State penitentiary, or a fine or imprison-
 ment in the county jail. In such cases, if the defendant upon aon-
 viction is assessed a fine or imprisonment in jail, or both such
 fine and imprisonment in-jail, he has been convicted of a felony--
 not a misdemeanor. For example, theft of domestic fowls, assault
 with a prohibited weapon, theft of wool, mohair, edible meat and
 theft of citrus fruit from an orchard or grove.
 Your question calls for construction of Articles 1027 and 1019,
 G.C.P., as amended. These Articles read, respectively, as
 follows:
      "In all cases where a defendant is indicted for a felony
      but under the indictment he may be convicted of a misde-
      meahor or a felony, and the punishment which may be assessed
      is a fine, jail sentence or both such fine and imprisonment
      in jail, the State shall pay no fees to any officer, except
      where the defendant is indicted for the offense of murder,
      until the case has been finally disposed of in the trial
      court. Provided the provisions of this Article shall not
      be construed as affecting in any way the provisions of
Hon. Geor,:;e
            H. Sheppard, Page 3   o-7471


      Article 1019, Code of Crixinal Procc<~ur::,
                                                ,:;s
                                                   ~i:c:???,J
                                                           by
      Chapter 205, General Laws, Regular Session, Forty-second
      Legislature; provided this shill not cppll-to examining
      trial fees to County Attorneys and/or Criminal Zistrict
      Attorneys."
      'IIfthe defendent is indicted for a felony and upon conuic-
      tion his punishment is by fine or confinement in the county
      jai.1 or by both such fine and confinement in the county
      jail'or convicted of a misdemeanor, no costs sh;ll be paid
      by the State to any officer. All costs in such c::scsshall
      be tyxcd, assessed and collected as in :aisdeneonorc~ses.tr
We have czofuliy reviewed our O~~iriiunNo. O-7440 and the t?lo
other opinions cited in your request, Twhich
                                          ,,:ave confused you.
In our Opinion No. o-7440, you I~Icl~2advised th:lta district clerk
of a.c ounty, the officers.of brhich 2re cori!pensGtedon t-fee'msis,
 was entitled to collect from the State thi:appropriate fee (eight
or ten i'ioll:rs)prescribed in Article 1026, C. C. P., upon the
dismissal of a felony case pending in the district court, notwith-
stancing the indictment liasreturned severrl~years previous to
the dismissal of the case. This 7;~sall t&it -was held. Pie adhere
to whclti'G2.S
             tllereholti. The question of whether the case :ras
%-educibiel'or "non-reducible" was not the question because a dis-
trict clerk is entitled to receive the lproperstatutory fee in
every felony c~c, ?:icther
                    '.      reducible or non-reducible, when final-
ly disposed of \'iit;;out
                        trial, or tiismisseior tried and acquitted.
(Art. 1026, C.C.?.) It is only &cn a final co!:victionis had in
a reducible c:se th'c the question a &aether        the State or
the defendant is liable for the cost to all officers. Article
lOl?, Code of Criminal Procedure, as amended.
In the opinion addressed to you by honorable Leon f,Zoses,
                                                         Assistant
Attorney General, dated October 7, 1935, the only question con-
sidered or answered was whether a district clerk ::asentitled to
collect transcript fees&om the State, under Article 1034, C.C.P.,
as amended in 1931, in a reducible case, whichvas pending in the
district court.
?Zr.I.;oses,
           after quoting Articles 1034 and 1027, C.C.P., as amended
in 1933, construed them toGether andheld you "would not have the
authority to pay the district clerk any fee for any case that
mi!&t have been reduced --
                        to a misdemeanor until the dase isfinally
CiisposXfTir
The answer is not full and conplete.~ It is our opinion the answer
should have been as follows:
The Comptroller has no authority to pay a district clerk any fee
in any reducible case, other than a murder case, until the case
Hon. George H. Sheppard, Page 4   O-7471


has been finally disposed of in the trial court. Furthermore
should in the defendant be convicted of a felony, and the pun ish-
ment assessed is a fine or confinement in the county jail, or by
both such fine and confinement in the county jail, or convicted
of a misdemeanor, you cannot pay the district clerk any fee what-
ever. The costs in all such cases are taxed, assessed and col-
lected from the defendant as in misdemeanor cases. See Article
1019, C.C.P., as amended.
In the opinion addressed to Honorable E. L. Shelton, County Audi-
tor of Johnson County, on November 23, 1933, signed by A. R.
Stout, Assistant Attorney General, the question there considered
WW:
     "Does Article 1019, Code of Criminal Procedure, apply to
     trial courts or examining courts?"
Mr. Stout prefaced his opinion as follows:
     "As the writer understands your question, you principally
     desire to know when the fees accrue to public officials by
     virtue of an examining trial that has been held, become
     collectible.*
De proceeded to write his opinion on the question as understood
and restated by him. After citing and discussing Articles 1019,
1020 and 1027, C.C.P., all of which had been recently amended,
he answered the question as follows:

     (1). "County Attorney and/or criminal district attorneys
     are entitled to their examining trial fees, after indict-
     ment, in all cases, assuming that their accounts'are correct
     and duly approved.lt

     (2). "In all murder cases, and other felony cases, where the
     on1 punishment that can be assessed is a sentence to the
      en tentiary the officers are entitled to their fees,
     *yT-3
     after indictLent, just as they have in the past."

     (3). "In all cases, however, where a defendant is indicted
     for a felony, but under the law for which he has been
     indicted, he may be convicted of a misdemeanor or the
     punishment assessed against him may be a fine or both fine
     and jail sentence, that is, less than a felon
     may not pay any money to the- magistrate,
                                       -    - F~'04h~e~~~te
     officer for their services rendered in the examining trial
     of such cases, until the same have been finally disposed of
     in the trial court.n
We find no objection to answer No. 1.
Eon. Ceoree Ii.Sheppard, Paze 5      o-7471



It is 0u.ropinion that answer No. 2 should have been as follows:
In all murder cases and other felony cases,~hcre the on11 punish-
ment l;hatcan be assessed is death or confinement in +peniten-
                                                      t e
tiary, the officers are entitmo     collect their examining
trial fees, after indictment just as they have in the ptist,as
provided in Article 1020, C.E.P., as amended in 1933, assuming
their accounts are correct;and dolly approved adsrequired by said
Article.
Xr. Stout's third answer is far from bein: complete. It is con-
fusing, and in some respects incorrect. The correct,nswer is
found in plain language in Articles 1019 and 1027, the very Articles
he was construing !fithArticle 1020, Code of Criminal Procedure.
It is our opinion this question should have been answered as follows:
In all cases where a defendant is indictedjbr a felony, other than
murder, but under the indictment he may be convicted of a mis-
demeanor or a felony, and the punishment :-ihichmzy be assessed is
a fine, jail sentence or bot'nsuch I'ine and ii;Yprisonment
                                                          in jail,
the State may not pay any fee to the ma~istriiteor any peace of-
ficer for their services rendered in the examining trial of any
such cases, until the same have beenfinallydisposed of in the
trial court. If the defendant in such a case is finally convicted
of a misdemeanor, or convicted of a felony and the punishment
assessed is fine, jail sentence or hot!]sue:?fine and ti,prison-
ment in jail, such officers c.3nnotcollect their examining trial
fees from the State, but such fees are taxed, assessed an:.:collected
as in misdemeanor cases. Art. 1019, C.C.P., as amended.
Mr. Stout   included flclerkVin his answer. Je have omitted that
word from   our answer for we knolgof no fee :;hichr:;iy
                                                       be collected
by either   a county or district clerk for services rendered in an
examining   trial.
Ze now come to the consideration of your question, which may be
briefly restated asfbllows:
      Is the Comptroller authorized to pay any fees to any of-
      ficer accruing to him after indictment in a felonyc ase,
      reducible or non-reducible, pending in the district court?
Y?e are not here concerned with the amount of fees ::jhich
                                                         the State
pays to the respective officers mentioned in your request, but with
the question -- ilhennay such fees be'paid to them 'by the State?
Fromwhat we have hereinabove stated, including our approval of
Mr. Stout's first answer, our revision of hissecond and third answers
and our answer to the question considered by Xr. Moses, it is
apparent that Articles 1019 and 1027, as amended, has in our
Hon. George H. Sheppard, Page 6   o-7471


opinion, superseded and nullified all pervious statutes (none of
which has subsequently been amended),,providing for payment by
the State of any fee accruing after indictment to the officers
named in your request inall Wteduaible cases", until such a case
has been finally disposed of in the trial court. In other words,
no fee can be paid by the State to any of the officers named in
your request which accrues after indictment in a reducible case
except a murder case while such case is pending in the district
court or before a final disposition thereof in said court. Further-
more, should the defendent be finally convicted of a misdemeanor
or convicted of a felony and the punishment assessed is a fine
or confinement in the county jail, or by both such fine and con-
finement in the county jail, no costs whatever may be paid by the
State to the officers named.
It is our further opinion that inall murder cases and in all
"non-reducible" felony cases, any officer named in your request,
who is permitted by the statutes to collect any fee accruing in
such a case after indictment and before the case has been finally
disposed of in the trial court, may do so, since Articles 1019
and 1027 have no application to non-reducible or murder cases.
Insofar as the opinions written by Mr. Moses and by Mr. Stout are
in conflict with this opinion, they are specifically overruled.
In answering your request, which pertains only to the payment of
fees accruing to certain officers for official services rendered
after indictment, it became necessary to consider and revise two
ofe    answers found in Mr. Stout's opinion for the reason his
answers and the answer to your request are controlled by the
provisions of the same Articles 1019 and 1027, Code of Criminal
Procedure.
Mr. Stout's opinion pertained only to the payment of fees to cer-
tain officers forservices rendered in an examining trial, i.e.,
for services rendered before indictment, and which cannot be
paid until after indictment of the defendant for an offense based
upon or growing out of the charge filed in the examining court.
(Art. 1020, C.C.P.) In this opinion we have answered not only
your request but the questions considered by Mr. Stout.
We sincerely hope that we have succeded in our efforts to remove
the confusion and uncertainty heretofore existing in your depart-
ment as to the correct procedure to be.followed in the payment
of fees totie officials concerned for.szrvices rendered in exam-
ining trials and for services rendered after indictment in "non-
reducible" and both classes of "reducible cases", asthoseterms
have been defined hereinabove.
Hon. George H. Sheppard   G-7471


                                   Yours very   truly
                            ATTORNEY GENERAL OF TEXAS

                            BY
                                   Bruce Bryant
                                   Assistant

APPROVED DEC. 6, 1946
                            BY
                                   Jno. C. Knorpp
                                   Assistant
FIRST ASSISTANT
ATTORNEY GENERAL
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