February 23, 1987
Eonorable Wiley L. Cheatham Opinion No. JM-635
District Attorney
P. 0. Box 587 Be: Whether a county attorney who
Cuero, Texas 77954 handles only misdemeanor criminal
cases is authorized to collect fees
in certain felony cases
Dear Mr. Cheatham:
You inquire whether a county attorney in onc of the counties in
your multi-county judicial district. who only handles misdemeanor
criminal cases, is permitted to collect checks of the felony grade (in
amounts of $750 and forgeries) under article 53.08 of the Code of
Criminal Procedure and retain the fees provided therein for use in his
office.
Article 53.08 of the Code of Criminal Procedure, Acts 1979, 66th
Leg., ch. 734, 41, at 1802, provides:
(a) A county attorney, district attorney, or
criminal district attorney may collect a fee if
his office collects and processes a check or
similar sight order if the check or similar sight
order:
(1) has been issued or passed in a manner
which makes the issuance or passing an offense
under:
(A) Section 32.41. Penal Code:
(B) Section 31.03, Penal Code; or
(C) Section 31.04, Penal Code; or
(2) has been forged under Section 32.21, Penal
Code.
(B) The county attorney. district attorney, or
criminal district attorney may collect the fee
Eonorable Wiley L. Cheatham - Page 2 (m-635)
from any person who is a party to the offense
described in Subsection (a) of this article.
(c) 'fheamount of the fee shall not exceed:
(1) $5 if the face amount of the check or
sight order does not exceed $10;
(2) $10 if the face amount of the check or
sight order is greater than $10 but does not
exceed $100;
(3) $30 if the face mount of the check or
sight order is greater than $100 but does not
exceed $300;
(4) $50 if the face amount of the check or
sight order is greater than $300 but does not
exceed $500; and
(5) $75 if the face amount of the check or
sight order is greater than $500.
(d) If the person from whom the fee is
collected was a party to the offense of forgery
under Section 32.21, Penal Code, committed by
altering the face amount of the check or sight
order, the face amount as altered governs for the
purpose of determining the amount of the fee.
(e) Fees collected under this article shall be
deposited in the county treasury in a special fund
to be administered by the county attorney, dis-
trict attorney. or criminal district attorney.
Expenditures from this fund shall be at the sole
discretion of the attorney, and may be used only
to defray the salaries and expenses of the pro-
secutor's office, but in no event may the county
attorney, district attorney, or criminal district
attorney supplement his or her own salary from
this fund. Nothing in this Act shall be construed
to decrease the total salaries, expenses. and
allowances which a prosecuting attorney's office
is receiving at the time this Act takes effect.
You do not suggest nor do we perceive any lack of authority for a
county attorney in one of the counties in the 24th Judicial District
to file felony complaints, to represent the state in felony matters in
your absence, and upon request to aid you in the prosecution of any
p. 2874 ‘
a
Honorable Wiley L. Cheatham - Page 3 (JM-635)
case in behalf of the state in the district court. Code Grim. Proc.
art. 2.02; Tex. Cone. art. V. 521. In fact, you relate that "for
the last forty to sixty years and probably much longer" the county
attorneys in the district have performed such duties, and except for
the county in question the county attorneys are presently handling
such functions in felony cases. You state that the county attorney in
this county, as of January 1, 1983, has
refused to accept any felony criminal complaints,
process felony cases, assist with the presentation
of felony cases to the grand jury or assist in the
trial of felony cases. or handle any matters of a
felony nature.
In Attorney General Opinioa MW-241 (1980) it was stated:
Although other public officials are specifi-
cally prohibited from undertaking 'the collection
of any claim for debt for others,' article
6252-24. V.T.C.S.. the addition of article 53.08
to the Code of Criminal Procedure removes any
doubt as to whether a county attorney, district
attorney or criminal district attorney nay do so.
You represent that "[IIt has been brought to my attention" that the
county attorney in question "has apparently been accepting checks for
collection under C.C.P.. article 53.08 which were [sic1 a felony
offense." The thrust of your inquiv appears to be whether a county
attorney in your multi-county judicial district forfeits the right to
collect checks (of the felony grade) when such official refuses to
file felony complaints or participate in any phase of felony
prosecutions. It is our opinion that the authority for a county
attorney in your judicial district to collect any checks (felony or
misdemeanor) under the provisions of article 53.08 is not conditioned
upon such official filing felony complaints or participating in any
phese of felony prosecutions. To read such a provision into article
53.08 would require us to impose a condition the legislature never
considered.
Our answer to the foregoing inquiry renders your second question
a moot issue. In it you posed the problem of what disposition was to
be wade of fees collected by the county attorney pursuant to article
53.08 on checks that came within the felony classification.
SUMMARY
The authority for a county attorney in one of
the counties in the 24th Judicial District to
collect checks of the felony grade (in amounts of
p. 2875
Honorable Wiley L. Cheathax - Page 4 (JM-635)
$750 and forgeries) is not forfeited by the county
attorney's refusal to accept felony complaints,
process felony cases, assist with the presentation
of felony cases to the grand jury and assist in
the trial of felony cases.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWRR
First Assistant Attorney General
MARY RELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 2876