~-882
TEXEATTOECNEY GENERAL
OF TEXAS
PRICE DANIEL
AUSTIN 11. 'I-EXAS
ATT0RNEY GENERAL
November 3, 1947
Eon. R. Y. King Opinion No. V-421
County Attorney
Donley County Re: Disposition to be made
Clarendon, Texes of fees of the county
attorney which eccruca
during the interim be-
tween the aesth of the
county attorney and the
appointment of his suc-
ceasor.
Deer Sir:
We refer to your letter of Ootober 17, 1947,
which reads In pert as follows:
"On October 3rd. the ooupty attorney of
Don&County died; on October 13th. the com-
missioners ' court appointed another county
attorney leaving ten dars without eny county
attorney. On October 7th the sheriff ar-
rested two men, one for drunkenness in a
public place, and one for driving e motor
vehlole while under the influence of intoxi-
cating liquor; both men plea guilty and peid
their fines and in both cases a fee wea col-
lected for the county sttorney. In the case
of drunkenness In 8 public plebe the sheriff
alone signed the complelnt. In the ceae of
ariving while intoxicated, the Distriot At-
torney signed the lnformstion but he did not
llve in the county and WRS not in the county
at the time of the trial.
"To whom do those attorneys fees belong?
To the District Attorney? To the County Attor-
ney? To the county ss general funds? Qr should
they be returned to,,thedefendant as fees im-
properly collected?
With reference ti,your question in the case
where the sheriff done signed the complaint end the coun-
ty attorney took no pert therein, this Depsrtment held in
Opinion No. O-4599, where the county attorney was in the
tamed forces, thet:
-
Hon. R. Y King - Page 2 (V-421)
"2. If the county sttorney has not
tsken any ection in such a cese end is not
present end reedy to represent the Stete
at A regular term of the justice court end
a defends& pleads guilty at such regular
term the county attorney would not be en-
titled to the fee. Nor would the county be
entitled to the fee. If no fee is due the
county attorney it should not be charged
agsinst the defendent."
Therefore, since there wss no cotity ettorney
of the county on October 7, nor hed one taken any part
whatsoever in the case, end under the foregoing opinion,
it is the opinion of this Depe,rtmentthat the Defendant
could not legelly have been charged a fee for the county
attorney and the $10.00 allowed the county attorney under
Article 1061, C.C.P , and the ten percent of the fine al-
lowed under Article 950, C.C.P., should be returned to
the defendant in said cese.
In the case of driving while intoxiceted, the
district attorney signed the inform&ion, which may leg-
elly be done. See Cody v State, 47 S W (28) 297. Don-
ley County Is Included in a district In which there is a
district ettorney end Article 1061, C.C.P., is es follows:
"District and county ettornegs shall
be allowed the following fees in cases tried
in the district or county courts, or a coun-
ty court et law, to be taxed against the ae-
fende.nt:
"For every conviction under the lsws
ageinst gaming when no eppeal is taken, or
when, on appeal, the judgment is affirmed,
fifteen dollars.
'For every other conviction in cases of
misdemeenor, where no appeel is taken, or
when on eppeal the judgment is affirmed, ten
aollers."
Therefore, under the above Article end the opln-
ion No. O-4599. It is the opinion of this Department thst
the district ettorney eerned the $10.00 fee as well as the
t&n per cent commission in this cease.
. -
Hon. R. Y. mag - Page3 (V-421)
"$t aMU be the, but
V.Q.I.,provide8that the dir-
Artiolr,Js861,
trlct attoraoy be
shall 00 ,LIsalary brrlr.
Seotlon 3 OS *alO Aot~pawidar a4 r0ii0v8f
“SIO. 3 ui fa, 00n~88i8n3 8~ +-
ulaites whit& may be raaard e.ob oo&leotrd b
s istrlot Attorneyb ~affaotrd ?q .thlr Aesd rhr%T
be paid iAt thr &3untJ @oaifMf of the OO~D-
tkes in whioh such,i@Os,am la?@ed .fos the
'aooouiat or the propez? fund.’
Th+Morr * la vmr of the fomgolng~, it l,r ,the ,,
spinion of thla. Departmat that the. dirtrict attitfiwy
ctmaot. pem~onally retain such fee ad aomissgiaa byt
should cgllrot the mad aw ,pay, it into ~the oountf troar.-
uryof yew? oounty. ‘,
DalrY bectlon 24 of Artictd SOP our State
Censtltutlon, said money shouU be .credltetl to the Road
ati Brfage, Fu@l of your cbuzity. .(Attorney Qeneral OpS.a-
ion lo. O-6940)
Upon the death of the county sttorney
and before the sppolntment of his successox?,
attorneys fees, collected in the county oourt
upon’ 8, plea of guilty should be, .returnod to
the defendent, If the sheriff was thi’p~i?soa
who signed the conplaint.
bre the oounti attorney I,# Urrd atid
the district attorney sl ,yed the intonation
in a case in county m3z.r and the d?fsnaant,
pLeaas guilty, tha atitornoJ’8 gee arid odnanls-
.sion should be. ooLlqcte4 an6 pal4 into the
Hon. R. Y. King Page 4 (V-421)
county treesmy to the credit of the
and Bridge Fund of the county. Sec.
Art. 3912e; Sections 1 and 3 of Art.
V.C.S.
Very truly yours
ATTORNEY GENERAL OF TEXAS
&X$fiUQkLe,
BY
Bruce Allen
BA:djm Asslstent
APPROVED:
ATTORNEY GENERAL
Untitled Texas Attorney General Opinion
Combined Opinion