8 / . . 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

GROVER SELLERS 

ATTORNEY GENERAL 

Honorable Earlon Martin 

County Attorcwy 

leoogdochea County 

Nacogdocher, Tours 

Dar sir: 

an otficer lmfully 

owed vlth mthorlty 

* 4rre8tr valve 

W8e88lMlAt Of th8 

sting fee l.n the ffxOf CO8t8 to be paid 

the deiendaat upon 

8 being found guilty? 

te reUue8tlng *n opinion 

aaptioned 8Ubj8Ct8, ho8 been 

iOR and reply. Your querlty are rccepted in criminal 

toa of the CoUnty Court. Therelike to have an l dvi8Ory opinion or 

your department a8 to the validity 

of a juagarent predicated upon e plea of guilty entered during vaCatlOU.n 

Qu88tlOn IiO. 2: 

"Can a eheriff, ooast@ble, Dspaz’tJlWlt Ot Public Safety off laer, %‘tS68 L%qUOr Control Board InBpXtOr, or any other officer lavfUlly endoved vith 

authority to nrke Wre8te VaiV8 the a8cie88Plsnt of 
549 

Honorable liarlon Martin, pege 2 

the =r-ting fee in the firil3g Of CO8t8 to be 

paId by the defendant upon hi8 being found guiltyTm 

In reply to yOW flr8t question, ve Iwe eaclo8Ing 

this deprartment*s opinion No. O-3090, vhlch WI believe an8Ver8 thin QUe8tiOn in the negative. 

In reply to Your 8ecoud quartion, ve quote from thi8 

d8flrtmQt'S OPiQiOn NO. O-768, wherein ve held that a State 

Bighvay PbtrObbR 18 Wltithd t0 no brr88tlag fee: 

“YOU me r88peCtfIllly advl8ed thbt thl8 E4- 

portent ha8 repeatedly ruled tbat b con8table or 

Other Q8bCS Officer 18 not entitled to aharge, 

collect, or rcoept fee8 unlerr he actually performed the 8ervIce8 set out in the 8UtUte. If 

the constable does not We the wre8t, nor thQ 

commitmnt nor the rele88e, he certainly oould not 

Chbrg8, Collect, or 8CCept 8 fee for doing 80. A 

rtate highway p8trolPan receiver 8 Mliry from the 

strte of Telar for hi8 8ervice8, and there ir no 

statutory buthorltg la thlr rtste vhereby a rtbte 

highvay patrolwm may oharge, collect or raaept l 

f8e frOIU a defendant. t’h8 88-y 8 8tbtt highV8y 

QbtrO~n receive8 from the State of Teu8 18 the 

only compensrtlon to which he I8 entitled to receive for performtag hi8 duti88 in Prre8ting the 

defendmat clurged with ral8depsanOr. 

"You are therefore, rk8peutf ully edvl8ed t&t 

if a state hlghvay patrolman 8rre8t8 a defendant iu 

a ai8demeanor aEi8e and bring8 the defendmt before 

the ju8tlce of the peace end the defeud8nt plea8 

guilty and Is a88e888d a iIRe, the jU8tiCe of the 

peace ahodd not tax an rrre8t See againrt the defendant. 

"For example, if a state highvsy patrolnmn 

wrest8 a defendant for violbtlon of a Qi8demNtkor 

8tatute and brings the defendant before the ju8tice 

of the peace a8 outlined by law, end the defendant 

enter8 his plea of guilty before the ju8tIce of the 

paace aad 18 888888ed 8 fine Of One dollU and 

CO8t8, tbn thi8 1s the follovlng amount vueh the 

defendant should be required to PrY iu di8oMrge 

of hi8 fine and cO8te, to-vit: 
aonorable Earlon hartin, page 3 

"One dollar ilne; five dollars fee for the 

county attoPQey; four dollars, trial fee - making 

a total of ten dollars." 

Tams Liquor Control Board Inspectors receive a aalerg from the State and are likewise entitled to no arresting 

fee. 

In re@rd to sheriff8 and COQ8table8, your attention 

is directed to the follovlng statutory QrOVisiOn8. Article 

102, Vernon'8 Annotated Pen81 Code provides: 

"Any county officer or any dlstrlat attorney 

to whom fees or Cost8 bre rlloved by l&v vho 8hall 

fall to charge UQ the fees or cost8 thbt may be 

due under exl8tltp,fJv8, or who Shall remit 8ny fee 

that lsay be due under the law, or vho shall fall 

to mbke the report reclulred by lav, or who 8hll 

p8y hi deputy, clerk OP..b88i8kQt 8 1888 8UPI thn 

specified in hi8 worn statement, or reoelve bek 

a8 8 rebate any part of the compen8atlon alloved 

such deputy, clerk or sselstant, 8hall be f,lned not 

le88 than tventy-fiVe nor more than five hundred 

dollars. &oh act forbidden by thl8 artiale 18 8 

reparbte offense." 

The Legislature, by Act8 1939, special Lavu, mge 

608, Section 1, provided for salaries for county officer8 in 

COMti88 containing a population of tventy thou8and (20,000) 

lnbabltants or more and provided for an Offlcers~ galrry Fund. 

This Aot appea~a 88 Article 3912e, Vernon’s Annotat8d Civil 

Statutes. Section 5 provides: 

"It &all be the duty of 811 officers to cbrge 

and collect in the mbnner 8uthorlGed by law all 

fee8 and ColIlmi88iOll8 vhich Bpe permitted by hV to 

be RsSes8ed and collected for all officibl 8erViCe 

performed by them. A8 and when suck fee8 bre aollected they shall be deposited in the OffiCeP8' 

&laPy Fund, or fund8 provided in this Act. IQ 

event the ComDli88iOneP8' Court find8 that the failupe to collect any fee or eommla8lon Vb8 due to 

neglect on the part of the officer charged vith 

the responsibility of collecting a&IQB, the amount 

ol suCh fee or comml8aloo shall be deducted from 

i 
I 

Honorable Harlan &wti.n, page 4 

the U-y Of 8Wh Officer. Before say 8uah deduction 18 made, the C0m1118810QeP8' Court 8ha11 

fuPal8h such officer vlth an ltemlced 8t8tement 

of the uncollected fee8 with which hi8 bcoou.nt 18 

to be charged, and sba11 notify ouch officer of 

the tlm and place for 8 hearing on ~nm, to determine whether such officer v&8 guilty of negllgence, vhich tiPla fOP hearing shrll b8 et leb8t 

t8Q days 8UbDeQUWAt t0 the t&t8 cd QOtia8. thh88 

en officer is charged by lav with the re8pon8lbllity Of 001leCtillg fees, the COlari88iOWP8' COUPt 

Shall Rot IQ any event ppke ray deductions IPom 

the authorlaed 8alery of 8uch officer." 

You are accordingly advised that prior to the p88- 

age of Article 3912e, the arresting officer v&8 entitled to collect md retain his fee md fbilure 80 to do va8 EWle 8 pen81 

offense . SubseQuent t0 the enactment Of Article 39128, the a~- 

re8ting ofilcer receiver 8 UrlRry in lieu of 811 feel, co3nml88ims ok compenabtlon to which he would othsrvlse be entitled. Under the provlslon8 of thi8 Act, the officer 18 Cbrged vlth the duty of charging and co11ecting hi8 fee a8 before 

and paying it into the OfflceP8' SaWy Fund. Should the oommi88loner8~ court find that the fbllure to Collect bny fee or 

corairrlon ~88 due to neglect on the prt of the offloer ah8rged vlth the re8poQ8lbility of co1lecting I&m, the bmount of 

such fee or commirrlon 8he11 be deduated from hi8 ~l@ry after 

notice and hearing had thereon 88 provided by the 8tatute. 

‘PrU8tiIl& thi8 fti1y 8n8YeP8 yOUP iQQUiPi88, v8 aPe 

Very truly yOUr8 

ATTORREX GXWRRAL OF TRXAR 

BY /t. 2. f&--L &---A-k 

H. T. Bob Donahue 

A88i8tbQt 

Enclo8ure