Untitled Texas Attorney General Opinion

,- .-. Bon. George B. Sheppard Comptroller of PublLo Aacounts Austin, Texas Dear Sir2 opini.onRoe O-7440 Re: Authority of Comptroller to pay fees on criminal cases which IndFctments were had in 1935 but were disposed of In 1946, and related ques- tFon. Your request for an opinion has been reoeived and carefully considered by this department. We quote from your request as follows: "The Eonorable C. C. Bond, District Clerk of Rays County, has filed a claim Fn this department in which the question of llmltatlon has arisen. Back in the year 1935, Willis Rewton was indioted for the offense of burglary, the case was poperlg docketed on the docket of the District Court of Hays County and was finally disposed of by being dismissed in 1946. One J. Y. Hagner wad indicted at the same time for the offense of forgery and p?SBiIl#3.This case was regularly docketed in the District Court of Hays County, Texas, and was peg- ularly disposed of by dismissal In 1946. The District Clerk fee has regularly accrued In these oases. The fee has not been paid by the State. "Is the Comptroller at thLs time authorized to Fssue~warrant In payment of the claim of the DFBtrict Clerk of Hays County for fees in the above mentioned cases? 'I** * * Hon. George B. Sheppard, Page 2 (o-7440) “DOeB Article 1027, C. C. P. apply to District Court fees accruing to a Distriot Clerk or does Article lo27 apply only to examining trial fees?n Article 1026, Vernon's Code of Criminal procedure, Title 15, authorizes the district clerk to receive eight or ten dollars according to the number of preceding presidential votes caBt in the county, whether three thousand or over or 1eSB than three thousand, for each felony case finally dis- posed of without trial or dFsmFssed, or tried by jury, whether the defendant be acquitted or convicted. With reference to the above fee under Artble 1026; supra, this statute was @enstrued In an opinion rendered January 21, 1913, found in Volume 27, page 171, of approved opinions of this department, wrItten by the late Chief Justice C. M. Cureton,~who was then Ftist Office Assistant to the Attorney General, In whtch it was held that Buch fee wan Fn the nature of a trial fee and is payable to the clerk In offioe at the time the oase Is tried. This construction of the statute has been consistently followed and such fee 1s not considered "earned" until the oase is finally disposed of either by trFa1 or di.BmisBal. The district clerk Fn office at the time the ease Is disposed of makes the collec- tion and reports the same in his flsoal report as earned fees rather than his predecessor. Article 1027, Vernon's Annotated Code of Criminal Procedure, provldesr . "In all cases where a defendant is indicted for a felony but under the Indictment he may be convicted of a misdemeanor or 2 felony, and the punishment which may be aBBeSBed la a fine, j-allsentence or both such fine and imprisonment in jail, the State shall pay no fees to any officer, except where the defendant is in- dicted for the offense of muxder, until the aase has been finally dtsposed of Fn the trial court. Provided the provisionB of this Article shall not be construed as affectFng in any way the provislons of Article 1019, Code of Criminal Procedure, as amended by Chapter 205, General Laws, Regular Session, Forty-second Legislature; provided this shall not apply to examining trial fees to County Attorneys and/ar Criminal District Attorneys." ..- Hon. George H. Sheppard, Page 3 (o-7440) The plain provisions of Artlole 1027A supra, read- ing "the State shall pay no fee to any officer , includes the district clerk. Similar languagesis to be found In Article 1019, Acts 1931. Therefore, our answer to your question is that the Comptroller at this time Is authorized to issue warrants In payment of the claim of the district clerk be- cause the limitation of one year applies to the time of dismissal (1946) rather than the tFme of filing of the case or the return of the Indictment. (1935) Article 1027, c. c. P., applies to district court fees accxuing to a distrlot clerk as he is an officer con- templated by said Article. Trusting that the foregoing fully answers your inquiry, we beg to remaFn Yours very truly ATTORNEYGPNPPALOFTFXAS APPROVED~OCT 21, 1946 /B/ Grover Sellers ATTORNEYGENERAL OFTEXAS JcK:dljm:mja APPROVED OPINION COMMITTEE BY[s'/ BWP,CHAIRMAN ~.