. , 

November 9, 1951 

Hon. D. E. McQIasson, Jr. 

County Attorney 

Opinion X0. V-J.340 .~ 

Randa 11 County Re: 

Canyon, Texas 

Applicability of $4.00 

sheriff’s fee”in the 

Dear Sir: 

described ~$roceedings 

in a justice court. 

Your tie@mst for an ‘opinionrelates to 

a factual ‘situation’ Ghereiii ‘eleven boysp-j WeM’charged 

in justi& court, upon complaint Of’.the ‘m&iager of a 

State park, with ~disturbing~ then peace‘in such park. 

The boys voluntarily appeared before the’ justice ~ofthe peace,’ who examlhed them, took a plea. of guilty, 

and assessed a fine and court costs. A deputy sheriff was requested by’the justice of the’peace to 

assist the court. Upon therefusal~of a ,Uunber of 

the boys to pay their fines, the ‘justice of’ the peace 

committed them to the deputy sheriff, who’ took their 

names . They paid their fines; .with the- exception of’ 

one boy, and as the deputy sheriff proceeded to leave 

the room with the boy in his’ custody, ~the justice of 

the peace requested of the deputy ‘sheriff to let the, 

boy 6~0, upon the~condition he’would pay the fine later, which he di,d. The puestion presented’ is3 Is a 

sheriff’s fee of $4.00 authorized as costs against 

the defendants? 

Article 1072, V.C.C.P, is as follows: 

“Sheriffs and constables servlng’process and attending any examining court’ih 

the examination of a misdemeanor case’ shall 

be entitled to such fees as are allotied by 

law for similar services in the trSa1 ~of 

such cases, not to exceed three dollars’in 

any one case, to be paid by.the defendant 

in case of final conviction.* 

This statute ‘does not authoriF% the allowance of a $3 fee in all events-for the ‘sheriff’s attendance at an examining trial, but only authorizes 
Hon. D. E,. McGlasson, Jr., page 2 (V-1340) 

such fees as are allowed for similar services in 

the trial of the'case, not to exceed $3. However, 

under the facts which you have stated, the sheriff 

was not entitled to any fees under Article 1072. 

In Attorney General's Opinion O-3078 (1941), 

it was stated: 

"1. There is no necessity for an 

examining trial in a misdemeanor case when 

the defendant pleads guilty to same and 

the court has jurisdiction of the offense. 

For example, if a defendant was charged 

in the justice court with the offense of 

public drunkenness and the justice had 

started an examining trial and if the defendant stated to the court that he desired to plead guilty the justice should 

abandon the examining trial and enter 2 

judgment against the defendant. Under 

such circumstances no fees should be allowed for an examining trial. The regular 

fees provided by law would be payable 

under such circumstances." 

As we view the facts, a plea of guilty 

was entered by the defendants prior to any examining trial. Therefore, no fees should attach by 

reason of any examining trial but should attach by 

virtue of the trial proper. 

By virtue of Article 1X7, V.C.C.P., the 

fees set out in Article 1055, V.C.C.P., are chargeable in criminal cases in jUStiCe courts. Article 

1065, V.C.C.P., is as follows: 

must 

tion 

"The following fees shall be allowed 

the sheriff, or other peace officer performing the same services in misdemeanor 

cases, to be taxes 'against the defendant 

on conviction: 

II . . . 

For each commitment or release, 

one dZ.ar." 

To entitle an officer to receive fees, he 

have performed the~services for which compensahas been specified. Art. 1011, V.C.C.P. 

, . 
Hon. D, E. McGlasson; Jr.,:page 3 (V-1340) 

Attorney'General~'s Opinion D-1189 (1939) 

held that onlg~where the facts show that the ilefendani t 

is in the actual and legal custody of a c.onstable! . -._- _--_- nt __ 

the time he pags'his fine is the consta ble entitled 

to a release fee. 

Attorney~General's Opinion 04788 (1940), 

relating to arrest, 

states: 

commitment, and release fees, 

"The Constable is entitled to $1.00 

for executing each valid commitment in misdemeanor cases. The'commitment'issues only 

after conviction of a defendant. The 'cornmitment' or ~authorlty for imprisonment,~ 

which the Constable executes in misdemeanor 

cases where a pecuniary fines has been adjudged against ~a defendant, and where the 

defendant is present, is a certified copy 

of such judgment, as outlined by Article 

787, C.C.P., Pupra.' If in such case'the 

defendant be not present, the 'capias' authorized and described in Articles 788 and 

789, C.C.P.; supra, is the 'cormnitmentt which 

the Constable executes.~~ Where the judgment 

is imprisonment in jail, Articles 795 and 

796, C.C.P., supra, apply, and the "commftment' in such cases would be either a~certified copy'of the judgment or a 'capias'; dependent upon the facts involved therein. 

The Constable would execute the 'commitment' 

by placing the defendant in jailas directed 

in the order; when this' was done by virtue 

of a valid commitment the Constable would 

have earned'his,fee and be erititled'thereto 

if, as and when, same was collected. 

" . . . 

"The Constable is not entitled to a release fee unless he has the defendant in 

his actual and legal custody- at the time 

the defendant pays his fine and costs orsatisfies same by laying its out 'injail and 

the Constable then and there releases the 

defendant from the force.and effect of a 

judgment restraining him. The term"release' 

cohtemplates a full, final and completes release and discharge from the judgment restraining the defendant.n 
Hon. D. E. McGlasson, Jr., page 4 (V-1340) 

It is further stated in Attorney General's 

Opinion V-322 (1947) that a sheriff is not entitled 

to a fee for commitment of a defendants unless such defendant is confined to the jail; and he is not entitled 

to a commitment fee for giving the defendant time in 

which to pay the judgment. But he is entitled'to receive $1 for final release of such defendant from his 

custody upon the payment of the judgment in full if the 

sheriff had custody of the defendant. 

Article 1055, V.C.C.P., has been construed 

as authorizing a~ $1 fee for each commitmentand a $1 

fee for each release. Att'y Gen. Op. V-322. In EL 

~~~t~o~~i~~~s~o~~h~~~.~~ ;!?;?iIf;;. Crim. 1$&O), Arti- 

"Aswe understand the statute the 'release' for which the sheriff 'or constable 

may have the item'of one dollar charged 

against an accused is the 'release' from 

the judgment directing that he~remafn in 

the officer's custody until the fine and 

c-xts are paid. 

"If relator had been placed in custody 

of the constable until the fine and costs 

were paid, and the constable had agreed that 

relator might go F? large and pay same by installments, he could not defeat the charge of 

one dollar for 'relet:e' because the constable 

had favore:l him with the courtesy mentioned. 

(We are no.t discussing or considering the 

right of the officer to make such an agreement.) 

"The issue as to whether relator was 

properly chargeable with the one dollar for 

'release' turns upon the question of whether 

relator was ever in the constable's custody 

under the judgment. . . .' 

We adhere to the rule stated in Opinion 

V-322 that where a pecuniary judgment for a fine and 

costs is rendered against a defendant who is present 

in court the sheriff is entitled to receive $1 under 

the provisions of Article 1055, V.C.C.P., for final 

release of the defendant from his custody when such 

judgment is paid in full, whether such judgment be 

paid at the time of itsentry or at a later date. 
Hon. D. 8. McGlasson, Jr., page 5 (v-1340)