Untitled Texas Attorney General Opinion

,. ( : /I: .’ OFFICE OF THE AITORNEY GENERAL OF TEXAS AUSTIN ;- c “Allll ,momn” euc- Bonorable George R. Shep:.,Rrd /T- j Comptroller of Public Accounts Austin, Texas Dear Sir; Qpinlon lo. O-2833 - requeut as followst the Indict- hePt of ~001. y jail sentsnce. officerar oountg e, end eheriff en- al fees on the count "If the defendant ia indicted for a felony ad upon conviction his punishment la by fine or confinement in the county jail, or by both such fine and confinement ln the oountg jail or oon- victed of a misdemeanor, no costs shall be paid by the State to a,nyofficer, All costs In such oases shall be taxed, assessed snd colleated as in misdemeanor csres." Honorable George H. Sheppard, Page 2 Article 10198, Vernon's Annotated Texas Code of Criminal Procedure, reeds es follows: *In all felony case8 where any officer la allowed fees payeble by the State for services performed either before or after indictment, in- cluding examlnlng trials before magistrates and hebeas corpus proceedings, no officer shall be entitled to fees in mozw then five oases against the same defendant;' provided, however, that where defendants are indicted and tried separate- ly after severance of their cesea, said officers shall be entitled to fees in five cases against each of said defendants, the same se if indloted and tried aeparetely for separate offensesi pro- vided further, that cases in which the same de- fendant has previously been Indicted, tried, and convicted prior to the date of any act or acts for which said defendant is again apprehended, indicted, and/or tried shall not be computed in determining the number of cases against such de- fendant in which such officers are entitled to collect fees." Article 1020, Vernon's Annotated Texas Code of Crlmlnal Proaedure, reeds as followa: "In each case where a County Judge or a Justice of the Peace shsll sit as an examining court in e felony case, they shall be entitled to the same fees alloved by lav for siailsr services in misdemeanor cases to Justices of the Peace, and ten cents for each one hundred vords for vrltlng dovn the testimony, to be paid by the State, not to exaeed Three and no/100 ($3.00) Dollars, for all his services in any one case. "Sheriffs and Constables serving process and attending any exetainingcourt In the examination of any felony oaae, shall be entitled to ruah fees as are fixed by law for similar services in mia- demeanor ceses in County Court to be State, not to exceed Four and no/l00 p@?OgJ %- lara in any one case, and mileage actually and necessarily traveled in going to the place of ar- rest, and for conveying the prisoner or prisoners to jell aa provided in Articles 1029 and 1930, Code of Criminal Proosdure, a8 the facts may be, but no mileage whatever shall be paid for summoning or Honoreble George B. Sheppard, Page 3 attaching witnesses In the county where case is pending. Provided no sheriff or constable shall receive from the State any sddltionel mileage for any subsequent arrest of a doPendant in the same case, or in any other case in an examining court or in any district court based upon the 8ame charge or upon the same criminal act, or growing out of the same crlmlnsl transaction, whether the errest is lnadewith or without a warrant, or before or after indictment, and in no event shall he be allowed to duplicate his fees for mileage for making arrests, with or vlthout warrant, or when two or more vnrrants of errest or capiaaes are served or could have been served on the same defendant on eny one day. "District and County Attorneys, for attend- ing and prosecuting any felony case before an exsmlning court, shall be entitled to a fee of Five and no/100 (45.00) Dollars; to be paid by the State for each case prosecuted by him be- fore such court. Such fee shall not be paid except in cases where the testimony of the mater- ial witnesses to the transection shall be reduc- ed to writing, subscribed and sworn to by said witnesses; and provided further that such written testimony of all mater281 witnesses to the trans- act;on shall be delivered to the District Clerk under seal, vho shall deliver the dame to the foreman of the grand jury and take his receipt therefor. Such foreman shall, on or before the adjournment of the grand jury, return the same to the clerk vho shell receipt him and shall keep said testimony in the files of his office for a ~... period of five years. "The fees mentioned in this Article shall become due and payable only after the indictment of the defendant for an offense based upon or growing out of the charge filed in the exaning court and upon an itemized account, SVOIQ to by the officers claiming suuh fees, approved by the Judge of the District Court, end said county Or D.:strlctAttorney shall present to the District Judge the testimony transoribed in the exeminlng trial, who shall examine the same end certify that he,hes done so and that he Plnde the testi- Honorab3o George II. Sheppard, Page 4 many of one or more witnessem to be materlal~ and provided further that a certificate from the District Clerk, showing that the written testl- many of the materiel witnessen has been filed with said District Clerk, in accordance with the preaeding peregreph, shall be attached to said eccount before such District or County Attorney lhall be entitled to a fee In any felony came for merviaee performed bedbre an examining court. "Only one fee shall be allowed to any offi- cer mentioned herein for eervlces rendered In an exeunlnlngtrial, though more than one defendant 18 joined In the complaint, or a oevereme 1s had. When defendants are prooeeded against eepar- ately, who aould have been proceeded egalnst jointly, but one fee shall be elloved in all oases thet could have been so joined. Ho more than one fee ahall be allowed to srqrofficer where more than one case 3.8flied against the emme defetiaat for offenses growing out of the same criminal act or tranaactlon. The account of the offlasr and the approval of the Dlstrlct Judge must afflrma- tlvely show that t&e provlaions of this Article have been complied with." Article 1027, Vernon’s Annotated Texas Code of Crlmlnal Proaedure,reeds as follows: "In 811 ceses where e defendant la lndloted for a felony bu$ under the Indictment he may be convicted of a misdemeanor or a felony, and the punishment vhlch may be assessed la a fine, jail sentenoe or both such fine and lmprleomaent in jail, the Stete shall pay no fees to any officer, except vhere the defendant is Indicted for the offense of murder, until the case has been flnal- ly disposed of in the trlel court. Provided the provisions of this Article shall not be construed es affecting in sny vay the provisions of Article 1019, Code of Criminal Procedure, ea wended by Chapter 205, General Laws, Regular B88siOnl Forty- second Legisleturet Provided this shell not to examining trial fees to CFty Attorneys Criminal Dlstrlot Attorneye. gonoreble George B. Shepierd, Page 5 This department held in an opinion written by Honorable A.R. Stout, Assistant Attorney Generel dated Bovember 23, 1933, recorded in Vol. 352, pages d-83, ln- clueive, Letter Opinions of the Attorney Goner&Zof Texea, a8 follova: "(1). County ettorneya &... ere entitled to their exa&ning trial fees, after indictment, in all felony cases, awmmlng that their accounts are correct and duly epproved. “(2). In all murder cases, and other felony ceses, where the onl punishment that can be eaaess- ed LIBe sentenae de pen.i~te&ierg,the officers are entitled to their fees, r dlctnleat,just as they have been In the past. “(3). In all oases, hovever, where a defendant Is indicted for a felony, but under the law for which he has been indicted, he may be conviated of a misdemeanor, or the punishment assessed a$ainst him may be e fine or both fine and jell sentenoe, that is, less than a felony, the State may not pay any money to the maglstrete, clerk or peace offl- cer for their services rendered In the examining trial of such cnses, until the same have &&rat been finally disposed of in the trial court." The ebove opinion van written prior to the passage of the Officers' Salary Lev and epplled to officers operating under the fee system. We understand that Hamilton County, Texas, operates under the fee system. Sections 111, 112 and 113, Burglary, 7 Texas Jurls- prudence, pages 869, 8'70and 871, read as follovs: ,,,,~l~;~,~~~~.~~ty of Burglary end Other . - According to the rule of the common law, the offenses of burglary and theft, if committed by the same transaction, ere merged! and hence a prosecution for one is held to be e bar to e prosecution for the other. This rule has been ebrogated in Texas. 'IIf a house be entered in such manner es to be burglary, and the one lhmorable ffeoge Ii.Sheppard, Page 6 guilty of much buqlary ahall after such entry commit any other offenae, he &all be punished for burglary and al80 for whatever other offense is mo comltted.' "'If the burglary van affected for the purpose of committing one felony, and the one guilty thereof shall vhlle in the house comait another felony, he shall be punIshable for any felony so ooarsaitted an well aa for the burglary.8 "ill2. Second Proseoutlon. - Within the purview of the rule that a person may not lawfully be tried a second time for the same offeme, the orlmea of burglary and theft, although arlaing out of a rin- gle transaction, are separate and distinot. Under independent Indictments oonvlctlonr traybe m both crimerr. A convlotlon of theft does not bar a subsequent prosecution fop the burglary3 and a pre- vious prosecution for burglary does not prevent a prosecution for theft of property alleged to have been stolen in the same transaction. The entry is one offense, and any offense oorrmittedthereafter my be prosecuted a8 another orlme. Where it appear8 that ths defendant assaulted the oooupaut of the house and then burglarized the bulldlng, a proxecu- tion for assault vlth intent to bommlt burglary is not barred by a former oonvlctlon of bwglary. Again an acquittal of a charge of burglary vith ln- tent to commit rape Is no bar to a subsequent prose- cution for assault with intent to comnlt rape; and a former aoqtittal of attempt to commit rape Is not a bar to a subsequent prosecution for an attempt to commit burglary vith intent to rape. "In a prosecution for receiving atolen goods, a plea of former jeopardy baaed on a previous ao- quLtta1 of a charge of burglary is properly stioken out. “1113. Soinder of Burglary and Offenee Com- mitted After Entry. - While two distinct offenses may not ordinarily be charged In the same count of en indictment, an exception exists vhere burfl;;y and theft are charged in the maw count. either offense has been properly alleged and prov- ed, a eonvlctlcn of that offense ie sustainable. Honorable George Ii.Sheppard, Page 7 However, lt 1s improper to as5038 punishment for both offenses in a single judgment." (Undereooring ours) The oase of Iark vs. State, 179 SW ll52, holds among other things, that under independent indictments con- victions may be had for both burglary andXiZF.~Ei out of the same transaction. In th& matter under consideration here there vae only one case ddcketed by the District Clerk i.nthe Dietrlot Court against the defendant. The “oae6” or indictment oon- eleted of two counts, one count ohargtng burglary and the other charging theft. It is true that separate lndlctments oould have been returned by the grand jury and two cauee, bearing separate distriot court docket nwnbere, could have been filed against the defendant, but this vae not done. In mswer to your first question you are reapeot- fully advised as followsr (a) Article 1027, V.A.T.C.C.=., euprn, doea not af- feat the fees of the county attorney, and under the facta stated the county attorney ir entitled to one esamlnfng trial fee, aeeumPng that ble account is correct and duly approved. (b) Article 1027, V.A.T.C.C.P., eupra, applies to the juetloe of the geaoe~and sheriff, and they are not entitled to any exaalnlng trial fee from the State under *he facts stated although one feature or count of the case charged a felony, to-vlt, burglary, vhlch was not a reducible offense and was abandoned, because the entire"case' was finally dle- posed of and resulted In the conviction of defendant and Ne punlsbment was asaeesed at a ninety-day jail sentence. Artl- ale 1019, V.A.T.C.C.P., supra, applies thereto, and the sheriff and justice of the peace mist oolleot OF atten@ to oollect their fee8 by the method outlined by Article 1019, suma. It la our opinion that your second question 1s Eonarable George B. Shep;ard, Page 8 speculative and premature and ehould not be anevered by tNe department at this time. Truet%g that this satlefactorily answers your in- qulry,we am Very truly yours ATTOHUEX GERERAL OF TBXAS ~wln. J. FanNiig Aeeletant WJFIAW