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November 9, 1951

Hon. D. E. McQIasson, Jr. County Attorney OpinionX0. V-J.340 .~ Randa11 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‘elevenboysp-j WeM’charged in justi& court, upon complaint Of’.the ‘m&iagerof a State park, with~disturbing~ then peace‘in such park. The boys voluntarilyappeared 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 ,Uunberof the boys to pay their fines, the ‘justiceof’the peace committed them to the deputy sheriff,who’took their names. They paid their fines; .withthe- exception of’ one boy, and as the deputy sheriffproceeded to leave the room with the boy in his’custody,~thejustice of the peace requested of the deputy ‘sheriffto let the, boy 6~0,

upon the~conditionhe’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 tosuch 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 ‘doesnot authoriF% the allowance of a $3 fee in all events-for the ‘sheriff’sattendance at an examining trial, but only authorizesHon. 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 factswhich 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 courthas jurisdiction of the offense. For example, if a defendant was charged in the justice courtwith the offense of public drunkenness and the justicehad started an examining trial and if the defendant stated to the court thathe desired to plead guilty the justice should abandon the examining trial and enter 2 judgmentagainst the defendant. Under such circumstancesno fees should be allowed for an examining trial. The regular fees provided by lawwould be payable under such circumstances."
As we view the facts, a plea of guilty was entered by the defendantsprior 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 inArticle 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 shallbe allowed the sheriff, or other peace officerperforming the same services inmisdemeanor cases, to be taxes 'againstthe 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'issuesonly after conviction of a defendant. The 'cornmitment' or~authorltyfor imprisonment,~ which the Constable executes in misdemeanor cases where a pecuniary fines has been adjudged against~adefendant, and where the defendant is present, is a certified copy of such judgment,as outlinedby 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 Constablewould 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,feeand be erititled'thereto if, as and when, same was collected. "

. . . "The Constable is not entitled to a release fee unlesshe has the defendant in his actual and legal custody- at the time the defendantpayshis fine and costs orsatisfies same by laying itsout 'injail and the Constable then and there releases the defendant from the force.and effect of a judgmentrestraininghim. The term"release' cohtemplatesa full, final and completesrelease and discharge from the judgmentrestraining the defendant.nHon. D. E. McGlasson, Jr., page 4 (V-1340)

It is further stated inAttorney General's OpinionV-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'toreceive $1 for final release of such defendant fromhis custody upon the payment of the judgment in full if the sheriffhad 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 'orconstable may have the item'of one dollar charged against an accused is the 'release'from the judgmentdirecting thathe~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 constablehad 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 courtesymentioned. (We are no.tdiscussing or considering the right of the officer to make such an agreement.) "The issue as to whether relator was properly chargeablewith the one dollar for 'release'turns upon the question ofwhether relator was ever in the constable's custody under the judgment.

. . .'
We adhere to the rule stated in Opinion V-322 thatwhere a pecuniary judgmentfor a fine and costs is rendered against a defendantwho is present in court the sheriff is entitled to receive $1 under the provisions ofArticle 1055,V.C.C.P., for final release of the defendant from his custodywhen such judgment is paid in full,whether such judgmentbe paid at the time of itsentry or at a later date.

### Hon.D. 8. McGlasson,Jr.,page 5 (v-1340)