State v. Norrell

53 Tex. 427, 1880 Tex. LEXIS 88

• Court: Texas Supreme Court
• Decided: June 11, 1880
• Docket: Case No. 4211
• Status: Published

Opinion

Bonner, Associate Justice.

The clerk of the district court of Travis county contends that he has the right to retain as his fees, under the provisions of article 1112 of the Revised Code of Criminal Procedure, the money for which this motion was made against him.

This article reads as follows: “The district or county attorney shall be entitled to ten per cent, on all fines, forfeitures or money collected for the state or county, upon judgments recovered by him, and the clerk of the court in which such judgments are rendered shall be entitled to five per cent, of the amount of said judgments, to be paid out of the money when collected.”

This is not a part of the original code of procedure, as adopted by the legislature, February 21, 1879, but is an amendment subsequently made, April 22, 1879, and that part in relation to the fees of the clerk is an entirely new and distinct clause.

The caption under which this amendment was made is as follows:

“An act to amend chapter two of title fifteen, and chapter one of title sixteen, in the Code of Criminal Procedure, of an act entitled an act to adopt and establish a Penal Code and a Code of Criminal Procedure for the state of Texas.’” Laws Regular Session, 16th Leg., 133.

The judgment upon which commissions are claimed by the clerk was rendered in a civil suit, upon a defaulting collector’s bond. Should it be admitted that the legislature could constitutionally pass an amendment to the. Code of Criminal Procedure, in which they should therein provide for the fees of clerks in civil cases, we are of opinion, from the caption itself of this act, and from its context, that the legislature by this article intended to provide for the fees of clerks, not in civil cases, but in those arising under the Penal Code and Criminal Procedure.

This construction is consistent with the language used, though that language might be sufficiently comprehensive, abstractly considered, to embrace fees in civil cases also.

The phrase, “upon judgments recovered,” would appropriately apply to judgments in scire facias cases on forfeited bail bonds and recognizances, which, though quasi civil in their nature, have been construed, both by this court and the court of appeals, in cases arising under the revised codes, to so far partake of a criminal character as that the supreme court did not have jurisdiction of them on appeal.

We are further strengthened in this construction from the fact that by the provisions of the revised civil statutes the fees of clerks in civil cases are otherwise fully provided for; and it will not be presumed, unless the language and context would bear no other reasonable construction, where the existing law has made adequate provision for the particular case, that the new law passed upon a different feature of the case was intended to be cumulative and give double fees for the same service. The case having been submitted upon an agreed statement of facts, and to obtain the proper construction of this article of the statute, the judgment of the court below will be reversed, and judgment here rendered for the state in accordance with this opinion, and it is accordingly so ordered.

Reversed and rendered.

[Opinion delivered June 11, 1880.]