Hon. H. A. Hodges

County Auditor Williamson County Georgetown, Texas

Dear Sir: iEini,on No. O-1445 : When the sheriffmakes a trip to serve a process, either civil or criminal, and fails to locate the person.on whom the process is to be served, is he entitled to the &! per mile as set out in Article 3899(b)?

Your request for our opinion on the above stated questionhas been received by this department.
Article 3899(b),kevised Civil Statutes, regarding certain officerswho receive a salary as compensation for their services, reads in part as follows,:
II

....The Commissioners' Court of the county of the sheriff's residence may, upon the written and sworn application of such officer, stating the necessity therefor, allow one or more automobiles to be used by the Sheriff in the discharge of officialbusiness, which, if purchasedby the county shallbe bought in themanner prescribedby law for the purchase of supplies and paid for out of the general fund of the county and they shallbe reported and paid in the samemanner as herein provided for other expenses.
"Where the automobile or automobilesare ownedby the Sheriff or his Deputies, they shallbe allowed four (44) cents for eachmile traveled in the discharge of official.business,which sum shall cover all expenses of the_maintenance,depreciation and operation of such automobile. such mileage shallbe reported and paid in the same manner prescribed-for other allowable expenses under the provisions of this section. No automobile shallbe allowed for any Deput Sheriff except those -regularly employed in outside work. ftshall be the duty of the CountyAuditor, if any, otherwise.thecommissioners' court, to check the speedometer reading of each of safdautomobiles, ownedby.the county once eachmonth and to keep aHon. H. A. Hodges, Page 2, O-1445

public record thereof; no automobile ownedby the county shallbe used for any private purpose...."

Our statutes specificallyprovide certain-feesfor mileage that a sheriff is entitled toreceive when servingboth civil and criminalprocess when such service is actuallymade; however, this departmenthas repeatedlyheld that a sheriff cannot legally charge fees for mileage traveled in attempting to serve civil or criminalprocess, meaning those fees provided by statute for serving such process. Referring to Article 3899, Section (b), supra,we quote from an opinionwritten by Hon. Joe J. Alsup, AssistantAttorney General, addressed to Hon. J. A. Belger, County Auditor, Travis County,Austin, Texas, January 13, 1936, as follows:
"Under the terms of said law we think it is evident that such mileagemust be considered as an expense and not as a fee. A fee is somewhat a remuneration for servicesrendered while the four (44) cents per mile spoken of herein ismere in the form of remuneration for money expended. We, therefore, conclude that the same could in no wise be~.considered a fee."

You arerespectfully advised that it is the opinion of this department that when a sheriff is acting in good faith and receives a salary as compensationfor his serviceshe should be paid the sum of four (44) cents for eachmile traveled by automobilewhile attempting to serve either civil or criminalprocess upon the person whom the process is to be served although ,thesheriff fails to serve suchprocess, provided the automobile is owned by the sheriff.. Trusting that the foregoing answers your inquiry,we remain

AW:AW/cg
APPRovm SEPTEMBER 23, 1939 s/ Gerald C. Mann ATTORNEY GENERAL OF TEXAS Very truly yours ATTORNEY GENERAL OF TEXAS s/ Ardell Williams, By .', ArdellWilliams

A~ssistant

Approved Opinion Committee BY m, Chairman