## THE ORNEY GENES

-~S%cey S. Wslker CountyAttorney Walker County Huntsville, Texas Dear Sir: This Opinion Modifies Opinion # O-1981

Attention: Robert B. Smither Opinion No. O-4680 Re: Underthe facts submitted IS the sheriff of Walker County entitled to collect his fees for the ~ i transportation of defendant, under Article 567-b, Section 5, Vernon's Annotated Penal Code, from the State or if the defendant should be required to remain in the county jail until he has satisfied such costs? Your letter of June 20, 1942, requesting the opinion of this department onthe above stated question reads as follows: "In Re: State vs. Willian B. Palmer,

CountyCo~t,,Walker County, Texae "In the above case the defendant has pleaded guilty:,to the offense of passing ahot check in the amountof $10.00 andhis punishment assessed at one day in jail andcosts of Court. The defendant was located at NewBraunfels; Texas; andheld there for the sheriff of Walker County, Texas, whowent after the defendant andtransported himto his county. "The question is whether the sheriff of Walker County Is entitled to collect his fees for the transportation of the defendant under Article 567-b, Section 5fran the State or if the defendant should be required to remain in the County Jail until he has satisfied such costs? "Weare unable to find any cases where this question has been construed by the Courts.Eon. DeweyS. Walker, Att’n: Robert B. Smither, Page # 2 O-4680

“It eppears the only methodbywhich the sheriff could collect his fees from the State would be by the district court approving anaccount for the sameas provided in Article 1030 of the Code of Criminal Procedure, however, in view of Article 1019of the Codeof Criminal Procedure it appears likely the district court would not be authorized to approve the sheriff ’s account and the defenr’ant would be required to remain in the county jail until all costs were satisfied.

“Ex parte Shaffer, 92S. W. 2d 250; Overstreet vs. State, 15 5. W. 2d 1039.” In opinion No. O-1981, this department held, amongother things, that: ”

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. Officers issuing andserving process in misdemeanor cases arising under Article 567b of the Penal Code are entitled to such fees ~8sthey would be in anyother miademeanor case . . . s ”

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. * where a defendant is convicted of a misdemeanor offense under the above mentioned article and is unable to pay his Pine and costs andsatisfies the ssmeworking on public works or remaining in jail as provided byArticles 785-797, inclusive, of the Codeof Criminal Procedure, the officers or witnesses would be entitled to collect from the county one-half fees as In other misdemeanor cases as provided by Article 1055, of the Code of Criminal Procedure. Bearing in mindthat officers issuing andserving process are only entitled to the samefees andmileage as in other misdemeanor ca*es. qe enclose a copy of this opinion herewith. With reference to opinion No. 1981, Supra, it will be noted that It is stated in part; “the officers orwitaeaaeswould be entitled to collect from the county one-half fees”, etc. Theword ‘witnesses” was ina.lvertently inserted. Witnesses are not entitled to anyfees under Art. 1055 C. C. P. Therefore, opinion No. 1981, is modified accordingly.

Article 235, Vernon’s Annotated Code of Criminal Procedure, provides:

“Onearrested for amisdemeanor ahall be taken before a magistrate of the county where the arrest takes place who shall take bail andtransmit immediately the bond so taken to the court having jurisdiction of the offense.”Hon. DeweyS. Walker, Att'n: Robert B. Smither, Page # 3 O-4680

You donot state in your letter whether or not the provisions of Article 235, aupra, were complied with. However, for the purposes of this opinion weassuae that the provis,ions of this statute were complied with, and that the defendant did not enter into andexecute abail bond andthe defendant was committed to jail of the county where hewas arrested under Article 236, Vernon's Annotated Code of Criminal Procedure, andthe magistrate committing himnotified the sheriff of Walker County in which the offense was alleged to have been committed of the arrest and commitment, andthe sheriff receiving the notice went for the defendant andbrought himbefore the proper court as authorized by Article 237, Vernon's Annotated Code of Criminal Procedure. In view of the foregoing, you are respectfully advised that it is the opinion of this department that the sheriff of Walker County is not entitled to collect his fees for the transportation of the defendant from the State andthat the defendant should be required to remain in the county jail until he has satisfied such costs at the rate of $3.00 per day. (Exparte Ferguson, I.23 S. W. (2d) 408 andExparte Patterson, 1325. W. (2d) 411.) Andas the county officials of Walker County are compensated on a fee basis the sheriff would be entitled to collect from the county one-half his mileage and other fees as in other misdemeanor cases as provided byArticle 1055, Code of Criminal Procedure. Trusting that the foregoing fully answers your inquiry, weare. Yours very truly A!ITORNEY

GEWEBADOF

TEXAS s/ Ardell Williams

Assistant AW:CO/Ldw APPROVED

JUG8, 1sQ s/ GWALDC. MANN ATTORNEY

QXEBALOFTEXM APPROVED OPINION COMMITTEE BYB. W. B. CHAIRMAN