Twa~ ATITOICNEY GENERAL
OFTEXAS
WILL WILSON
ATTORNEYGEN~~AJ.
tune 21, 1961
HonorableNelson Quinn OpinionNo. WW-1079
CountyAttorney
Taylor County Re: By Article 877 of Vernon'sCode
Abilene,Texas of CriminalProcedure,Is the
County bound to pay a munici-
pality a portionof the fine
and court costs collectedfrom
a defendant,who has appealed
his case from the corporation
court to the county court at
Dear Sir: law?
This opinionis Issuedin responseto your requestfor an
opinionof this office concerning,whether any portion of the fines
and costs imposedon's defendant,in a-case appealedfrom the corpo-
ration court.by the countycourt at law shouldbe paid to the munici-
pality from whence the appeal comes,and if so, which part shouldbe
so paid.
In your letteryou~raisethe questionof the ambiguityof
Article877 of Vernon'sCode of CriminalProcedureas it affectsthis
matter. Articie877 reads as follows:
"/ct. 877. Dispositionof fees
'. The fine imposedon appealand the costs im-
posed on appeal and.in the corporationcourt shall
be collectedof the defendant,and such fine,and
the cost of the corporationcourt when collected
shall be paid into the municipaltreasury."
The problem is to determine.whichof the phrases In the first
clause is modifiedby the phrase, "and in the corporationcourt." We
think that this referenceis merelyto the costs on appeal and not to
the fine for three reasons:
(1) The rule that there is a singlepunishmentfor
a singlecrime indicatesthat one of the fines, either
the one assessedin the corporationcourt, or the one
on.appealmust be a nullity,and since the,whole,in-
tendmentof.the trial de nova is to assess a new fine :
or to set the defendantat liberty,the nullitymust
be the corporationcourt fine.
L .
Hon. Nelson Quinn,Page 2 (ww-1079)
(2) Had the Legislatureintendedto refer to both
fines and both sets of costs, it would have phrased
its intentby some such constructionas, "the fines
and costs imposedon appeal and in the corporation
court . . ."
(3) Our Court of CriminalAppealshas held that
a trial de novo wholly obliteratesthe action of
the corporatioucourt, Ex rte Jones 128 Tex.
Grim. 380, 81 S.W.2d70SE",,,,'
, wherein it is said: ".
. .we deem it only necessaryto say that the lan-
guage of our Constitutionand statutesabove quoted
is so plain as to almost demandapologyfor an
argumentor any other citation. A trial de novo
literallyIs a trial from the beginningas If no
'formertrial had been had. Each step taken neces-
sary to the joiningof the issue in the superior
court--justas In the lower--mustbe gone through
with in the superiorcourt as if there had been no
trial at all in the lower court. If we may be
pardonedfor saying so, the complaintmust be read
or waived, such plea enteredas the accusedsees
fit, and the evidencemust be heard,and the
verdictand judgmentrenderedin accordancewith
law in the superiorcourt,withoutregardto the
evidence,plea, or manner of conductthe trial took
in the lower court. Shu.+ v.,~ Lempert, 55 Tex.
273; Ham-oldv. Darwise,10 Tex. Civ. App. 1.38,30
S.W. 498; .SanSaba Water C.~&.Im. Di,st,v.Sutton,
(Tex. Civ. App.').8‘S.W.2d319; +-to.n Salt Co. v.
Wells, (Tex. Civ. App.) 35 S.W.2d 454. All of which
means a trial in the county court of the entire case
anew as if there had been no trial below. See Giles
v. Shaw, 146 Oil. 28, 203 P. 1103. In ,Kirksey v.
state, 58 Tex. Cr. R. 188, I25 S.W. 15, Judge Davidson
said, when an appeal from convictionin juSticecourt
is taken to the county court, the case shallbe tried
a6 if it has never been tried. Again, in Martoniv.
State, 74 Tex. Cr. R. 64, 1.66S.W. 1169, the same
great judge said that our statuteprovide6that when
convictionoccurs in an inferiorcourt and appeal is
prosecutedto the county court,the trial in the
county court shall be as if there had been no trial
In the justicecourt."
Having determinedthat the legislativeintentas to fines
concerhsitselfonly with the fine imposedon appeal,the question
occurs as to the dispositionof such fine. Article877 says the fine
Hon. Nelson Quinn, Page 3 (WW-1079)
is to be paid, along with the costs of the corporationcourtinto the
municipaltreasury. The finesassessedon appeal is in lieu of and
substitutedfor the Pine imposedby the corporationcourt.
It is suggestedthat Article877 might contraveneSection
24 of Article 16 of the Constitutionof Texas. That Sectionlays
down this rule:
"The Legislatureshall make provision6for
laying out and workingpublic roads, for the
buildingof bridges,and for utilizingfines,
forfeitures,add convictlabor to all these
purposes."
There aresseveralressonswhy w6 do not find,thelanguage
in this Section coutrolling.
First, the very languageof the Sectionimplies.th+ the
Sectionis not self-operating.It says, "The Legislatureshall
T .ll. The natural impllcation,of
make prOViSiOU6,. this languageis
that broad discretion,is.leftto.the &agisl$+e aS~,tothe I+nS,
character,and proportiopof,fines,etc. to be used,onroads.,
Secondly,this Section,if it were tO,bs interpreteda6
invalidating Article 877,;would~haveto be,shown to be an earmarking
of the funds and labor so derived. Earmarkingof funds is know to be
among the poorestmethods of financialcontrol. The gross inefficiency
that derive6from thiS~practi.ce is detrimentalto the interestsof the
people,and this fact must have been known to the framersof this
Section. It follows,therefore,that the intentof the framersmust
have been to utilize only 6UCh fines, forfeitures,and convictlabor
as was necessaryto the maintenanceof the public roads.
Thirdly,at the time of the enactmentof this Section,which
was a part of the originalConstitutionof 1876, we are informedby
the learnedannotatorof the Vernon'sTexas Constitution,". . . the
demoralization followingthe Civil War led to an unprecedenteddis-
regard for law, and to an increasednumber of arrestsand convictions.
The prisonpopulationtrebled in a singleyear, and additionalemploy-
ment for convictshad to be found. It was thoughtthat road building
might take care of this problem. . .". Since some convictssimply
cannotbe used on roadwork,e.g. those under penaltyof death, females,
the ill, it followsthat the framersdid not intendthat ethe
availableconvictlabor shouldbe used in this way. Indeed,we can-
not assume that the framerswould have intendedto put the State in
the positionof the Sorcerer'sApprentice. We think that the framers'
likewisedid not intendto channelall the fines and forfeituresthat,,.
may be derived,from whatever soul-ce, into the supportof the public
roads.
Hon. Nelson Quinn,Page 4 (WW-1079)
For the reasonsstated,it is the opinionof the Attorney
Generalthat Article877, V.C.C.P.me8118that upon convictionafter
a trial de novo 'fromthe CorporatiouCourt,three items shall be
collectedof the defendant,to-wit: (a) the costs incurredin the
CorporationCourt, (b) the Cost6 Incurredin the County Court,and
(c) the fine imposedon appealby the County Court. It is further
the opinionof the AttorneyGaneralthat of these,the County is to
keep only the costs incurredin the County Court and the County is
to pay over to the municipaltreasurythe costs incurredIn the
CorporationCoui-taridthe fine imposedby the CountyCouth on appeal.
Article87’7of Vernon'sCode of CriminalPro-
ceduremeans that when a case is appealedfrom a
CorporationCourt for trial de novo befor the
County Courtand a convictionresultsin the
County Court,three Items are to be collectedof
the defendaut,and these are the costs incurredin
the CorporationCourt,.thecosts incurredin the
County Court, and the fine imposedon appealby
the CountyCourt; and It 16 the duty of the County
to pay over to the municipaltreasurythe costs in-
curredin the CorporationCourt and the fine imposed
on appealby the County Court.
Y-6 very truly,
WILL WIISON
AttorneyGeneralof Texas
OPINIONcmRFi
W. V. Geppert,Chal-
tinwardShivers
WilliamR. Hemphill
Thomas BUNS
WilliamH. Pool
R!3VIRWRDFORTRRATTGRNRYGENRRAL
By: Morgan Nesbitt