, OFFICE OF THE AlTOIWEY GENERAL OF TEXAS
AUSTIN
i auhwQ.Ylutn
I--
Xoao~8U.e R. 0. X4aTor
countg mlitor, .Gtayuta Gooooty
She-, Terra
.=
“in reprd to t5e ibova i~f ~~r;lhtriou, !. C
GrapsJn Co~uilty Is lirbi.0 t0 t’ls iUStiC6 Of tht!
iajca ior h3ldia erdnl~ trhla in sls:le;ra32or
C+~SCS,aad if t:ie Ju,tice of t‘= Team is not an
*Officer of the Court’ under Lbrt. 1055, C. C, S.*
rlrrt fund could n;loh fess be Qald froa, azd in
what asses should Im rsosi7e his fee ln tote1 snd
which casea should is receive tilli-ices? l ’ **
Oenerally speakiq, offenses are divided late felonlee
and mledaaeanord. (mtlols 47, Vernonad iumotated Mud Cods of
Texas; auasell v, State, 36 ;3, H. 1070) .The Code, ( Art. 47, sunra)
del”initTond are as follms:
“An offsase which my - hot suat - be
pmikmble by death or b7 conflnezent in the
panltentiarg is a felony; every other ofienee
13 s nlsde~tisnnor.”
lktder tha above provision, an ofiensa it3 a felony when it .aay Cle
punished by death or by confl!xmat in the psaitentiary, though
a lesser punislment may bo provided In the alteruztive; or, stated
in another way, Lf punishmat is prescribed altermtlvely, aad out
of the alternatives 13 death or confine.ae:lt in the penltentiarg,
the offense Is necessarily a felong,tkmgh, the jur3 is at libwty
to inrllct eom nilder puni3tment, and rictusllp do so. (Z‘oods v.
a.3tec 10 3. x. 1%; Snith vi Jtate, 29 s. *. SO)
The last pmagraph of ;3ection 17, ;,rticle 3912e, Yer-
non’4 tiauotatod Civil Jtatutea of Texas, provides:
“In counties wherein the county officeto
naad in this not aro ootiponssted on the basis of
an annual salary, .the state of Teraa shall not be
charged with and ehall not pay any fee or oozmlr-
don to any precinot officer for any services by
him pertorxed, but said officer shall be paid by
the oounty out of the Officers Salary Bund; such
fees and ~0mdse10as as would otherwise be gaid his
by the Gtate for such eervIces,w
The county orriclals or Grayso~ c~mty are oon-
pfm30tad on 6n snnual sallry basla and the preci~c t OrfiC8rs
of said county are compensated on a fee basis.
article 1313, Varnon’a .tnnot&ea code or c’ri;Ilnal
?mccduro, reads a8 follows:
*xi the dereodant la tnatotea r0r a rd0nf
and upon ocnvlction~s puniskne.lt i8 by ti.% or oon-
finssat ;in the county Jail, or by both suoh fine
-and oonfionlsat in thn oounty Jail, or ooavlcted
of a tisde.mm.ncr, no Costa shall be paid by ths
state t0 WY 0rri03r. All costs in such casbssball
be taxed, assessed and collected &a in ~lsdeaeescot
C0*68.*
. fitlola 1020, Vernon’s -Annotated Code or &l&al
iroced~za, prorldes, ln gart:
*Ia each oaee waere D county judge or a
just108 af tB peaoe shall set .aa an axa424lng
court in a relony ease, they shall be entitled
to the saios fees allowed by law for slsllar Barr-
Ices in sdtimeanor cases to Justices oi the peace,
and ten cs&s tar saoh one hunixed words far wrlt-
iog down the testinony, to ba pa13 by tha State,
not to eroeed three azd no/l30 (:33.00) dollars
for all of his serrlcee in any om ease.
“* l * the roes zke.ationed in this article
shall beoozaa due and gayable only after the in-
diotzant or the defendant r0r any 0rreirrrQbflsd
upon or growing out or the charge tiled in tha
txduing oourt and upon an i tenized acco;znt,
acorn to by the orrleers claldng such fses, ap
provad by the Judge or tba Distrlot Court, and
raid county or dletriot attorney, shall present
to the Distriot Jufge the test&my transcribed
in the exazining trial, who e.hall eraalne the saw
and Certify t&t he has done so md that he finds
the testkonp of one oi,sore witnesses to'ba mat-
erlal; and gmvl;led farther t.hat a oertfficatb
Honorable 2. C. Nedyea, psga 4
from tti District Clerk, showing that tha writtsn
teatIaony or the mterial witaeaoeo has been fliled
with aaid JIstrIot Clerk, In aooofdahca w&h the
preceding parayaph, ehull be attaohedto as16 ac-
count before auoh dlatrfot or oounty attorney shall
be entItle to a fee In any ralony 0”s: formaerrloea
perrorozd before an examInIag court.
&Mole 1027, vernon~a ‘wtatba Code of Crlmlnal
xhobame, reads as r0u0ws:
*In all caaea wham the abrenaant I8 in-
dloted for felony but under the indlotsent he nay
be conrioted of a a~deriwWIOr or a felOny, and the
punlihaent which siay be assaased is a flw, jail
seateace or both auoh ilne and bnprisonnent ln jaI1,
the .&ate ahail pay no reaa to any orricer, exce*
uhar* tba defendant is ~afatea far tha offense of
auxdar, until tit3 aa8e has .$&en iiaally diap08ed
or to tla trial'oourt. Prorldea the gxovisiona of
th.ia artlola sbau not ba 00nstr-a as airaoting ia
uny way the provisions of &%lcle 1019, Coda of Criaind
?rocedrYe, as azmAe6 by Cbspter 205, Genersl LFAWS,
2egular Lession, 42nd kgIslat,ure; provided this
shsll not apply to ere.nInlug trial reeo to county
attoraays sad/or crlniaal aiei0t attorneya.*
Conaldering Articles lOlQ-N20, azd 1027, ‘?ernon’o
annotated code 0r CrIzIssl Procadure, and SootIon 17 0r srticla
39120, Vernon’s amotatad Clr 11 Statu tad, and the oese of Zx
8hcifer, 92 3. h. (26) 250, It is our opinion thst where a-il&e
m indiatad ror a relony and umn coaoiotlon his puaiahmnt
is by iisa or conflnezent In the oollnty jell, or by both such fine
ad conrInesbat In the county jail, or comioted of B miadameanor,
Grayson County la not liable to the justices of the pesoa wbo are
Ooapm3ated on a Pee basis, ror holding exaraihlhg trlala in suoh
ca383.
. .
Honorable R. CF heaves, page 5
7ie now consider your seoond question. In Opinion
No. 04091 this department held that Artlole 1071. Vernon’s
Annotated Code of &iutinal Procedure, la in violation of Artf-
ale 5, Section 11 of our State Constitution and, therefore,
unconstitutional. A copy of said opinion 1s enolosed herewith
for your oontenlenoe.
In Opinion No. 04924 this department held, among
other things, that Artiole 1055 Vernon's AMOtEtea Code of
Crlmlnal Prooedure, haa no applktlon to fees due tbs justices
of tbs peace.and oounty judger for their servloea in trying and
finally dieposing oi orkalnal oaaea inaemuoh as they ore entitled
to full feee iron the oount~ under irtiol6 1052, Vernon’s Annota-
ted Code of Criminal Pmoedure, for each criminal aotion tried
and finally disposed of, lrreepective of the oolleetlon of or
satleiaotion of the judgment they render. A copy of that opln-
Ion is also enolosed herewith.
It la our opinion thatmlther Article 1055 nor Arti-
ale 1052, Vernon'8 Annotated Code of Criminal Procedure, has
any application whatsoever to reee in examining trials. There-
fore, In view of what haa heretofore been safd, it is appared.
that your seoond question becomes moot and requires no further
dlaausaion.
Youra very truly
..- - ..__
ATl'CR?EY GENZRdLOF T'RXIS
@.f7&&L&
AtL?G:ti
BY
Ardell billiams
Assistant
-;W:EP
Enol.