Attorney General Opinion WW-1079

Twa~ ATITOICNEY GENERAL OFTEXAS WILL WILSON ATTORNEYGEN~~AJ. tune 21, 1961 Honorable Nelson Quinn County Attorney Taylor County Abilene, Texas Opinion No. WW-1079 Re: By Article 877 of Vernon's Code of Criminal Procedure, Is the County bound to pay a munici- pality a portion of the fine and court costs collected from a defendant, who has appealed his case from the corporation court to the county court at Dear Sir: law? This opinion is Issued in response to your request for an opinion of this office concerning,whether any portion of the fines and costs imposed on's defendant, in a-case appealed from the corpo- ration court.by the county court at law should be paid to the munici- pality from whence the appeal comes, and if so, which part should be so paid. In your letter you~raise the question of the ambiguity of Article 877 of Vernon's Code of Criminal Procedure as it affects this matter. Articie 877 reads as follows: "/ct. 877. Disposition of fees '. The fine imposed on appeal and the costs im- posed on appeal and. in the corporation court shall be collected of the defendant, and such fine,and the cost of the corporation court when collected shall be paid into the municipal treasury." The problem is to determine.which of the phrases In the first clause is modified by the phrase, "and in the corporation court." We think that this reference is merely to the costs on appeal and not to the fine for three reasons: (1) The rule that there is a single punishment for a single crime indicates that one of the fines, either the one assessed in the corporation court, or the one on.appeal must be a nullity, and since the,whole,in- tendment of.the trial de nova is to assess a new fine : or to set the defendant at liberty, the nullity must be the corporation court fine. L . Hon. Nelson Quinn, Page 2 (ww-1079) (2) Had the Legislature intended to refer to both fines and both sets of costs, it would have phrased its intent by some such construction as, "the fines and costs imposed on appeal and in the corporation court . . . " (3) Our Court of Criminal Appeals has held that a trial de novo wholly obliterates the action of the corporatiou court, Ex rte Jones 128 Tex. Grim. 380, 81 S.W.2d 70 SE",,,,' , wherein it is said: ". . .we deem it only necessary to say that the lan- guage of our Constitution and statutes above quoted is so plain as to almost demand apology for an argument or any other citation. A trial de novo literally Is a trial from the beginning as If no 'former trial had been had. Each step taken neces- sary to the joining of the issue in the superior court--just as In the lower--must be gone through with in the superior court as if there had been no trial at all in the lower court. If we may be pardoned for saying so, the complaint must be read or waived, such plea entered as the accused sees fit, and the evidence must be heard, and the verdict and judgmentrendered in accordance with law in the superior court, without regard to the evidence, plea, or manner of conduct the trial took in the lower court. Shu.+ v.,~ Lempert, 55 Tex. 273; Ham-old v. Darwise, 10 Tex. Civ. App. 1.38, 30 S.W. 498; .San Saba Water C.~&. Im. Di,st,v. Sutton, (Tex. Civ. App.'). 8‘S.W.2d 319; +-to.n Salt Co. v. Wells, (Tex. Civ. App.) 35 S.W.2d 454. All of which means a trial in the county court of the entire case anew as if there had been no trial below. See Giles v. Shaw, 146 Oil. 28, 203 P. 1103. In ,Kirksey v. state, 58 Tex. Cr. R. 188, I25 S.W. 15, Judge Davidson said, when an appeal from conviction in juStice court is taken to the county court, the case shall be tried a6 if it has never been tried. Again, in Martoni v. State, 74 Tex. Cr. R. 64, 1.66 S.W. 1169, the same great judge said that our statute provide6 that when conviction occurs in an inferior court and appeal is prosecuted to the county court, the trial in the county court shall be as if there had been no trial In the justice court." Having determined that the legislative intent as to fines concerhs itself only with the fine imposed on appeal, the question occurs as to the disposition of such fine. Article 877 says the fine Hon. Nelson Quinn, Page 3 (WW-1079) is to be paid, along with the costs of the corporation courtinto the municipal treasury. The fines assessed on appeal is in lieu of and substituted for the Pine imposed by the corporation court. It is suggested that Article 877 might contravene Section 24 of Article 16 of the Constitution of Texas. That Section lays down this rule: "The Legislature shall make provision6 for laying out and working public roads, for the building of bridges, and for utilizing fines, forfeitures, add convict labor to all these purposes." There ares several ressons why w6 do not find,the language in this Section coutrolling. First, the very language of the Section implies.th+ the Section is not self-operating. It says, "The Legislature shall make prOViSiOU6,. T .ll. The natural impllcation,of this language is that broad discretion,is.left to. the &agisl$+e aS~,to the I+nS, character, and proportiop of,fines, etc. to be used,on roads., Secondly, this Section,if it were tO,bs interpreted a6 invalidating Article 877,; would~have to be, shown to be an earmarking of the funds and labor so derived. Earmarking of funds is know to be among the poorest methods of financial control. The gross inefficiency that derive6 from thiS~practi.ce is detrimental to the interests of the people, and this fact must have been known to the framers of this Section. It follows, therefore, that the intent of the framers must have been to utilize only 6UCh fines, forfeitures, and convict labor as was necessary to the maintenance of the public roads. Thirdly, at the time of the enactment of this Section, which was a part of the original Constitution of 1876, we are informed by the learned annotator of the Vernon's Texas Constitution, ". . . the demoralization following the Civil War led to an unprecedented dis- regard for law, and to an increased number of arrests and convictions. The prison population trebled in a single year, and additional employ- ment for convicts had to be found. It was thought that road building might take care of this problem. . .". Since some convicts simply cannot be used on roadwork, e.g. those under penalty of death, females, the ill, it follows that the framers did not intend that ethe available convict labor should be used in this way. Indeed, we can- not assume that the framers would have intended to put the State in the position of the Sorcerer's Apprentice. We think that the framers' likewise did not intend to channel all the fines and forfeitures that,,. may be derived, from whatever soul-ce, into the support of the public roads. Hon. Nelson Quinn, Page 4 (WW-1079) For the reasons stated, it is the opinion of the Attorney General that Article 877, V.C.C.P. me8118 that upon conviction after a trial de novo 'from the CorporatiouCourt, three items shall be collected of the defendant, to-wit: (a) the costs incurred in the Corporation Court, (b) the Cost6 Incurred in the County Court, and (c) the fine imposed on appeal by the County Court. It is further the opinion of the Attorney Ganeral that of these, the County is to keep only the costs incurred in the County Court and the County is to pay over to the municipal treasury the costs incurred In the Corporation Coui-t arid the fine imposed by the County Couth on appeal. Article 87’7 of Vernon's Code of Criminal Pro- cedure means that when a case is appealed from a Corporation Court for trial de novo befor the County Courtand a conviction results in the County Court, three Items are to be collected of the defendaut, and these are the costs incurred in the Corporation Court, .the costs incurred in the County Court, and the fine imposed on appealby the County Court; and It 16 the duty of the County to pay over to the municipal treasury the costs in- curred in the Corporation Court and the fine imposed on appeal by the County Court. Y-6 very truly, WILL WIISON Attorney General of Texas OPINION cmRFi W. V. Geppert, Chal- tinward Shivers William R. Hemphill Thomas BUNS William H. Pool R!3VIRWRDFORTRRATTGRNRYGENRRAL By: Morgan Nesbitt