Honorable C. 0. Murdoch Opinion No. O-3054
County Attorney Re: Manner of "handling hot checks" and
Menard County fees of county attorney for various
Menard, Texas serVlce8.
Dear Sir:
Your recent request for an opinion of this department upon the
questions as ara herein stated has been received.
We quote from your letter as follows:
"I am enclosing copies of forms which I should like to
know would be lawful to use? Would the one marked No. 1 be
unlawful to use, where the check is deposited with the County
Attorney with the understanding that.if the check is not paid
off within 10 days or a certain period of time that prosecu-
tion is desired, a complaint is to be drawn and filed. Would
this manner of handling the hot check cases violate the law:
Articles: 1298, 1299, or 1300, or 13011 Would the one turn-
ing the check over to the County Attorney under such an ar-
rangement be violating any of the above provisions of the P.
Ct.7
"I am particularly interested in knowing the law in re-
spect to this matter, for my own sake, as well as for those
who hold the checks. I am new on the job, and I have not used
any of the forms mentioned, but if they may be used lawfully,
I may find it convenient to use some of them, where the holder
of the check wants to give the drawer of the check another chance
before filing a complaint. I have been telling them, so far,
that if they want to give them another chance to hold the check
and communicate with the drawers and demand immediate payment
of the check, but not to make any threat of prosecution, but
that they may say that they will place said checks in the hand
of an attorney for collection.
"In respect to another matter: Is it permissible to send
form marked No. 2 to officers of the home county or another coun-
ty with a warrant of arrest, and have the Court to say in advance
what the fine and costs will be, and have the arresting officer
collect the amount, plus the amount of his fee, if he is out of
the county, providing the one against whom the warrant is drawn
will plead guilty, and authorize the arresting officer to enter
Bonorable C. 0. Murdoch, page 2 (O-3054)
said plea in said court by filling out and signing the author-
ization to do SO, as in form Sent with form No. 2, and pays
off the amount to the said arresting officer, who shall then
send in the amount and the plea of guilty for the one charged?
"If this may be done in one court, Justice for Instance,
and not another, please explain,
"Another matter: I have not been sufficiently informed
on the question of fees. I should like to know specifically
what fees of office to which I am entitled and when. What fees
should I receive in Justice Court, when the defendant pleads
guilty without trial, he does so when he is broughtbefore the
court, and pays a fine then set by the court and costs? Same
circumstances but does not pay fine, but works out his fine or
lays it out in jail?
"In the County Court, when the defendant pleads guilty and
refuses to pay fine, if fine is given as penalty, but works It
out or lays in jail? Or when defendant is given a jail sentence
after he pleads guilty? It is my understanding that I am to re-
ceive $10.00 when upon a trial one is found guilty in the county
court or In the Justice Court, unless there is a special statute
applying such as for gaming case under art. 1061, C.C.P., which
allows $15.00; and it is my understanding that the County Attor-
ney is to re~ceive$5.00 if the defendant pleads guilty in mls-
demeanor cases in either court, regardless whether the defendant
pays his fine or works it out or serves a jail sentence? Article
1068.
"If you have any chart or table that makes the fee question
clear, please mail me one, I am supposed to receive the regular
fees of office, and if I fall to collect them, then my salary
will be insufficient to justify my holding the j~ob,see, as my
compensation is to be $50.00 per month and fees of office. This
County has less than three thousand votes. If there is any dis-
tinction as to fees as to cases in which the defendant appears
and pleads guilty at the examining court or regular trial court,
make it clear, please. It is my understanding that if the defend-
ant waits until trial to plead guilty, ~then it is a trial even
though there is not a regular trial of the case, that is though
the case does not go through the whole gamut of the trial.
"I hope that I have not confused you as to the fee question.
I just want to know what fees that I am entitled to receive, and
should like to know to whom to look for them, I have some ideas
about them from reading the statutes, but am in doubt about some,
so If you can enlighten me on this matter, it will be appreciated.
"Please return the forms submitted."
Honorable C. 0. Murdoch, page 3 (o-3054)
Section 4 of Article 567b, Vernon's Annotated,Penal Code, reads as
follows:
: I' "
"Sec. 4.~ For the first conviction for a violation of seo-
t&s 1, 2, or 3 of this Act , in the event the check, draft, or '
order given on any bank, person, firm, or corporation, is Five
Dollars ($5) or less, the puuishment shall be by imprisonment!
in the county jail not exceeding two years,~or by a.fine not ax-;:.
ceeding Two Hundred Dollars ($200). For the first conviction: .'I,.
for a violation of sections 1, 2; or 3 of this Act, incthe event .:
the check, draft, or order given on any bank, person~firm or
corporation, is Inexcess of"Five Dollars ($5.),but.less than
Fifty Dollars ($50), punishment shall be.by;,imprisonment.,inthe
county jail not exceeding two years,:or,by a finenot exceeding -z
Five Hundred Dollars ($500).
:,
"If It be shownon the.trial of ai case involving a violation ,.
of sections 1, 2, or 3 of this Act in which the check, draft, or
order given on any bank, parson, firmor corporation, is less than
Fifty Dollars ($50), that the defendant has been once before con-
victed of the same offense, he shall on his.second conviction, be
punished by confinement In the county jail for notless than thir-
ty (30) days nor more than two.(2) years.
"If it be shown upon'the trial of a case inyqlving a violation
of sections 1, 2~,~or3 of this Act that the defendant has two (2)
or more times before been convicted of the same offense, regard-
less of the amount of the check, draft orsorder involved in the
first two (2) convictions,,upon the third or any subsequent con-
viction, the punishment shall be by confinement in the penltenti-
ary for not less than two (2) nor more than ten (10) years.
"For the first conviction for a violation.of sections 1,,'2,
or 3 of this Act, in the event the check, draft.or order given
upon any bank, person, firm or corporation, is in the amount of
Fifty Dollars ($50) or more, punishment shall be by confinement
in the penitentiary for not less than two (2) years nor more than
ten (10) years."
Article 60 of the Code of Criminal Procedure'provides:
"Justices of the peace shall have jurisdiction in criminal
cases where the fine to be imposed by law may not exceed two hun-
dred dollars."
Article 56 of the Code of Criminal Procedure provides:
"The county courts shall have original jurisdiction of all
misdemeanors of which exclusive original jurisdiction is not
given to the justice court, and when.the fine to be imposed shall
exceed two hundred dollars."
Honorable C. 0. Murdoch, page 4 (o-3054)
It will be noted that the penalties prescribed in Subsection 4 of Ar-
ticle 46~~ Vernon!s Annotated Penal Code, are such that the county court will
have original jurirdlctlon In all misdemeanor cases prosecuted under Article
567b of the Penal Code. Therefore the Justice Court does not have jurisdiction
In such cases.
Chapter 4, Title 16, Vernon'6 Annotated Penal Code deals with false
accusations and threats of prosecution. This chapter includes the articles of
the Penal Code mentioned in the first paragraph of your letter wherein you in-
quire whether or not the using of exhibit marked No. 1 enclosed with your let-
ter would be a violation of these statutes or any other statute of the Penal
Code. After carefully considering exhibit No. 1 and the above mentioned stat-
utes, you are respectfully advised that it is our opinionthat the using of ex-
hibit No. 1 would not violate any article of the Penal Code.
With reference to exhibit No. 2 your attention is directed to Article
580, Vernon's Annotated Code of Criminal Procedure, which provides:
"In all prosecutions for felonies, the defendant must be
personally present at the trial, and he must likewise be present
in all cases of misdemeanor when the punishment or any part there-
of is imprisonment in jail. When the record in the appellate
court shows that the defendant was present at the conusencement,
or any portion of the trial, it shall be presumed in the absence
of all evidence In the record to the contrary that he was present
during the whole trial."
In view of the lalrtquoted statute, you are respectfully advised that
exhibit No. 2 cannot be legally used for the purposes mntioned in your letter.
Your questions with reference to fees due the county attorney for his
services are so broad and unlimited we must answer them in a general manner.
However, If there is any specific fee that you desire,to inquire about, we will
be glad to give it our most careful consideration.
We assume that the Fifty Dollars per month mentioned in your letter
is for ex officio services allowed by the Commissioners' Court under Article
3895, Vernon's Annotated Civil Statutes,
The county officials of Menard County are compensated on a fee basis
and with reference to fees which the county attorney is entitled we believe
can best be answered by citing the various statutes applicable thereto. We
shall first discuss the cost to be paid by the defendant, which are to be taxed
against him upon conviction. Article 1061, Code of Criminal Procedure, pro-
vides:
"District and county attorneys shall be allowed the following
fees in cases tried In the district and county courts, or a county
court at law, to be taxed against defendant; For every conviction
under the laws against gaming when no appeal is taken, or when, on
appeal, the judgment Is affirmed, fifteen dollars.
Honorable C. 0. Murdoch, page 5 (o-3054)
"For every other conviction in cases of.misdemsanor, where
no appeal is taken, or when on appeal the judgment is affirmed,
ten dollars."
Article 1068,Vernon's Annotated Code of Criminal Procedure, provides:
"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 ciiminal ac-
tion in a justice court shall recaive, for each conviction on a
plea of not guilty, where no appeal Is taken, ten dollars."
Article 950,Vernon's Annotated Code of Criminal Procedure, provides:
"The district or county attorney shall be entitled to ten
per cent of all fines, forfeitures or moneys collected for'the
state or county, upon judgmants recovered by him; and the clerk
of the court in which such judgments are rendered shall be en-
titled to five per cent of the amount of said judgments, to be
paid out of the amount when collected."
Article 1020, Code of Criminal Procedure, provides in part:
"+ * 44. District and county attorneys, for attending and
prosecuting any felony case before any examining court, shall
be entitled to a fee of five dollars, to be paid by the state
for each case prosecuted by him before such court. Such fees
shall not be paid except in cases where the testimony of the
material witnesses to the transaction shall be reduced to writ-
ing, subscribed and sworn to be said witness; and provided fur-
ther that such written testimony of all material witnesses to
the transaction shall be delivered to the District Clerk under
seal, who shall deliver the same to the foreman of the grand
jury and take his receipt therefor. * * *."
Article 1055, Code of Criminal Procedure, provides:
"The county shall not be liable to the officer and witness
having costs in a misdemanor 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 working such fine out on the county roads
or on any county project. Any to pay such half of costs, the
County Clerk shall issue his warrant 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."
With reference to commissions due the county attorney on money other
than that collected under the Penal Code and Code of Criminal Procedure, your
attention is directed to Ai-ticle 335 of Vernon's Annotated Civil Statutes.
Honorable C. 0. Murdoch, page 6 (O-3054)
With reference to fees due county attorney who represents the State
and County in all suits against dellnquenttax payers, your attention is di-
rected to Article 7332, Vernon's Annotated Civil Statutes.
With reference to fees due the county attorney for his services in
lunacy proceedings, your attention is directed to Title 92, Vernon's Annotated
Civil Statutes, and amendments thereto,
We are enclosing herewith the above mentioned exhibits.
Trusting that the foregoing fully answers your inquiry, we are
APPROVED JAN 30, 1941 Yours very truly,
GROVER SELLERS A!lTORNEYGENEHALOFTEXAS
FIRST ASSISTANT ATl!ORNEYCENFHAL
AW:RS:hep By s/ Ardell Williams
Ardell Williams
APPROVED Assistant
OPINION
COMMITTEE
BY BWB
CHAIRMAN