This is a motion to retax the costs in said case, which was appealed from Montague County, and affirmed at a former term of this court, and, as ancillary to this motion, there is also an injunction granted by the district judge of the Sixteenth Judicial District. The items of cost are clerk's fee, in this court, $10; Attorney-General's fee, $10; issuing writ of execution, $1; and the return thereon, $1 — making in all $22. The clerk of this court issued an execution for said costs, $10 was paid to the sheriff of Montague County as the costs of the clerk of this court, and the balance of $12 the appellant and his sureties refused to pay, claiming that the same was not legitimate costs, for which appel-lant and his sureties were bound on the recognizance executed in the court below. Appellant insists, in this connection, that article 1071 of the Code of Criminal Procedure of 1895 only authorized costs which are expressly provided for by law, and that the Attorney-General's fee of $10, and the cost of issuing the execution and return thereon ($2), are not provided for by any statutory law; at least that there is no provision making the sureties on appellant's recognizance liable for such costs. By reference to article 1119, chapter 4, Code of Criminal Procedure 1895 (which chapter has reference to costs to be paid by defendant), it will be seen that the Attorney-General, in every case of misdemeanor in which the judg-ment of the court below is affirmed by the Court of Criminal Appeals, is allowed the sum of $10. Article 1120 authorizes the clerk also to receive *Page 514 a fee of $10, which is couched in similar language as the preceding article. Article 1121 authorizes the fees named in the preceding sections to be taxed against the defendant and collected as in other cases. Article 1122 specially provides that, when the judgment, of the court below is affirmed against a defendant, the fees of the clerk of said court shall be adjudged against the defendant and his sureties on his recognizance, for which execution shall issue, as in other cases of appeal to the Court of Criminal Appeals. It is contended that, because this article provides as to how the fees of the clerk shall be taxed and collected, it excludes the idea that the fee of the Attorney-General can be taxed and collected in the same manner; and, if the fee of the Attorney-General is collectible at all, it must be collected from the defendant by proceedings in the court below, as provided for in the collection of costs in said court, and that the defendant alone is responsible for such costs.
We do not so understand this matter. The fee of the Attorney-General is as much the costs accruing in the Court of Criminal Appeals as the clerk's fees, and is expressly provided for by the statute above quoted. It is costs accruing solely in the Court of Criminal Appeals, and depends upon one of two propositions — either that the judgment is affirmed or appeal is dismissed. As said before, article 1121 provides for taxing of costs of the Attorney-General and of the clerk against the defendant, and for their collection as in other cases. These costs pertain to no other court but this, and we know of no other place where they can be taxed, and no other tribunal authorized to collect such costs. The recognizance given on appeal to this court expressly provides that the defendant shall abide by the judgment of the Court of Criminal Appeals. We hold that the fee of the Attorney-General, as well as the fee of the clerk, is a legitimate item of costs against the appellant and the sureties on his recognizance. We further hold that, to enforce the collection of these items of costs, the clerk of this court is authorized to issue an execution, and that he is entitled to the same fee therefor, as well as the return thereon, as is provided in civil cases.
We accordingly overrule the motion to retax the costs, and authorize the clerk of this court to issue an execution for the amount of the costs uncollected.
Motion overruled. *Page 515