YTTOWNEY G*:NERAE
?#?lEXAS
Honorable George P. Hudson
County Attorl-ey
Jones County
Anson, Texas
Dear SLr: Opinion No. O-3243
Re: Commissions due county attorney
on money collected on bond forfel-
ture in liquor injunction case and
disposition of remafnder.
Your request for our opinion upon the above captioned
question has been received by this department.
We quote from your letter as follows:
"In the District Court of Jones County, In
the cause of State of,Texas vs. Yates Drug, the
Yates Drug made a $1000.00 bond in an injunction
which was had against them for illegal sales of
liquor. Now by the further illegal sales the
bond has been forfeited and judgment has been
taken against them and they have paid'ln to the
District Clerk of Jones County $1000.00 to satLs-
fg said judgment.
"We cannot find any law dlrectlg on the
point of what disposition should be made with
said $1000.00, that is what portion should go
to the County Attorney as fee for the prosecu-
tion of the case (or rather what part should
go to the salary fund as the county attorney's
fee) and what should be done with the remainder.
"All of this goes to the county as I under-
stand it, and I contend, that under article 335
R.C.S. 'Whenever a district or county attorney
has collected money for the state or county, he
shall within thirty days after receiving the same
pay in to the treasurer of the state or the coun-
ty in which it belongs, after deducting there-
from and retaining the commissions allowed him
thereon by law. Such district or county attor-
ney shall be entitled to ten per-cent commission
Honorable George P. Hudson, page 2 O-3243
on the first thousand dollars collected by him
in any one case for the state or county from
any individual or company, and five per-cent bn
all sums over one thousand dollars; to be retain-
ed out of the money when collected, and he shall
also be~entltled to .retaln the same commissions
on all.collectlons made for the state or for any
county, and
(4'Art'.950 C. C. P.
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 judgments recover-
ed by him; and the clerk of the court in which
said judgments are rendered shall be entitled
to five per-cent of the amount of said judgments,
to be paid out of the amount when collected.'
that the county attorney is entitled to the ten
per-cent of the $1000.00 judgment collected by
him in prosecution of said case to collection
of the judgment.
"If there is further law on this point I
can not find any thing on Ft. I would appre-
ciate an opinion from'your'department on this
subject so that the judge may instruct .the dis-
trict clerk what disposition is to be made of
the funds on hand."
We have been advised further by your letter of March
15th, that the injunction and the forfeiture of the bond in
question were obtained under Article 666-29, Vernon's Annotated
Penal Code, and that the whole $1000.00 was paid directly to
the District Clerk by the defendant in satisfaction of the
judgment.
Article 666-29, Vernon's Annotated Penal Code, provides
as follows:
"Any room, building, boat, structure, or
place of any kind where liquor is sold, manufac-
tured, bartered,-'orgiven away In violation of
this Act, or of any rule, or regulation of the
Board, or where persons are permitted to resort
for the purpose of drinking liquor in violation
of the law, or any place where such beverages
are kept for sale, barter, or gift in violation
of law, and all liquor.and all property kept
and used Ln said place, hereby are declared to
be a common nuisance and any person who maln-
Honorable George P, Hudson, page 3 O-3243
talns or assists in malntalning such common nui-
sances, shall be guilty of a violation of this
Act. Any county, OP district attorney, orthe
Board, or any agent or employee of this Board
in the county where-sudh nuisance exists, or is
kept, or maintained, may maintain an action by
injunction in the name of the State, or the Board
to abate and to temporarily and permanently en-
join such nuisances. Such proceedings shall be
guided by the rules of other injunction proceed-,
m3s, except that the plaintiff shall not be re-
quired to give bond in such action and upon final
judgment against the defendant the Court shall
order that said room, house, building, structure,
boat, or place of any kind shall be closed for
a period of one year, or closed for a part of
said time and until the owner, lessee, tenant,
or occupant thereof shallgive bond with suffl-
cient surety, to be approved by the Court making
the order, in the enal sum of not less than One
Thousand Dollars ($ lpO0) payable to the State,
and conditioned that liquor will~not thereafter
be manufactured, possessed, sold, bartered, or
given away, or furnished, or otherwise disposed
of therein, or kept thereon, OP therein, with
the intentto sell, barter, OP give away, or
otherwise dispose of same contrary to law, and
that he will pay all fines, costs, and damages
assessed against him for any violation of this
Act. If any conditions of such bond be violated
the whole amount may be recovered as a penalty
for the use of the county wherein the premises
are situated.'
Article 1628, Vernon's Annotated Civil Statutes, pro-
vides as follows:
"The funds received by the county treasurer
shall be classed as follows, and shall be appro-
priated, respectively, to the payment of all
claims registered in the first, second and third
classes:
"1 " All jury fees, all money received from
the sale of estrays, and all occupation taxes,
"2 . ~11 money received under any of the pro-
visions of the road and bridge law, inoluding the
penalties recovered from railroads for failing
to repair crossings, and all fines and forfeitures.
Honorable George P. Hudson, pae4
g O-3243
“3 . All money received, not otherwise ap-
ropriated herein or by the commissioners court."
Punderscoring ours)
Proceedings instituted by'a-county attorney under the
hereinabove quoted article (666-29), resulting in the re-
covery of,a judgment on the violation of the conditions offs
s~uchbond, is a civil a&ion. The remedy afforded for ablate-
ment of such plades as comnionnuisances under sald article ~~-
666-29, Is cumulative to the provisions for,criminal prosecu-
tions underother subdivisions of~~drticle666 of,Vernon's An-
notated.Penal Code. Antner V~ State (Civ. App,), 114 S. W.
(2a) 640.
The county attorney's right to commission on money ~-
collected in civil proceedings and the amount of such commls-
slon is governed by Article 335, Vernon's Revised Civil
Statutes, 1925, Article 950, of the Code of Criminal Pro&e-
dure, confers no right to commissions for the collection of
moneys in suits which are in every respect civil in character
or in no manner connected with the administration of criminal
law, but applies only In cases arising under the Penal Code
or the Code of Criminal Procedure, State v. Moore, 57 Tex.
307 0
We agree, therefore, with the conclusion reached in
yourletter that the county attorney is entitled to retain ten
per cent commission on the $1000.00 collected on the judgment
recovered by him under the facts submit,ted.
As the proceeding under lnvestigat$on Is a civil case,
the district clerk is not entitled to the . 0 . five per cent
of the amount of said judgment to be paid out of the amount
when collected", under Article 950 of the Code of Criminal
Procedure, but must look to the statutes governing his fees
in civil cases. State v. Norrell, 53 Tex. ~427; State v. Hart,
96 Tex, 102, 70 S. W, 948, 949. An examination of those
statutes will show that no commissions are allowed the district
clerk In civil cases.
You are therefore respectf lly advised, under the facts
stated, that it is the opinion of his department that the
county attorney is entitled to a c9mmission of ten per cent on
the $1000.00 collected,
It is the further opinion of thisdepartment that the
proper disposition to be made of the $1000.00 In the handsof
the district clerk, is for that officer to pay the $lOOO,OO,
into the county treasury and,for the treasurer to apply $100.00
thereof to the credit of the salary fund and the remaining
$900.00 to the credit of the road and bridge fund.
Honorable George P. Hudson, page 5 O-3243
Thanking you for the aaaltlonal information requ?stsd
by us, we are
Very truly yours
ATTORNEY GEN?JRALOF TEXAS
By s/iZi¶gar
Pf611
Edgiw Pfeil
Asslstant
EP:LM:wc
APPROVED APRIL 2, 1941
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman