. 

- _ 

R-221 

Hon. Homer D. Eck 

County Auditor 

Fayette County 

La Grange, Texas 

Dear Mr. Eck: 

Opinion Ra. V-112 

Rer Fees due a constable and 

a related matter. 

Your request for ,an opinion of this Department 

is substantially as follows: "L ,, 

" "!~ ~.,.) * 

: 1 ': "Fags+&8 Oounty has its oounty offioeri 

on a salary basis and its precinct officers, 

suoh as the conetible end justioe of the peace, 

on a fee basis. One e? the constables arrested 

,. a defendant in a forgory aaqe,,a~,,t,bta,n.broaght 

-'b him et o "the 'county jr$J.',' 1_ 

: I /i "$ 

,'&.,' : " + 1, .~. ', 

* /t,, 

9,r, * ' '1flIn,view $P'the a&?+e iact$; ~&&II give 

me ,your opi,nio& on the”‘fbilowipg .qises,t,ienr9 ; 

“1. How much is the constable entitled 

to for making the arrest and committing the 

‘, prisoner? 

,~,i “2. Under the ‘above facts, what mileage 

,i is the’ constable entitled to if he travels 8 

,I? ,: miles with the warrant to make the arrest and 

.b '* .’ 23 miles ,wfth the prfsener from the point af 

.;. i:: making ‘the ‘arrest tc the county jail ,,in his 

,, :i own automobile? 

:, 

“3 o Does Article 1029’C.C.P. as amended 

by the 43rd Legislature entirely supersede the 

old Article 1029 C.C.P. sinoe the old Artiole 

1029 C.C.P. gives more detailed fees for services 

performed by the officer? In other words, which 

Article are we to follow, the old Article 1029 

C.C.P. or the new Artiole 1029 C.C,P. as amenaed 

by the 43rd Legislature in 1933?11 

Article 1030 of the Code of Criminal Procedure 

provides in part as f~ollows: 
Hon. Homer D. Xck, Page 2, V-112 

“In each county where there have been cast 

at the’ preceding presidential election less than 

3,000 votes, the sheriff or constable shall reosive the following fees when the charge is a 

felony: 

*. 0 . provided, that in counties that 

have a population of less than forty thousand 

inhabitants, as shown by the preceding Federal 

census, the following fees shall apply: For 

ezeouting each warrant of arrest or oapias, or 

for making arrest without warrant, when authericed by law, three dollars and fifteen cents fcr 

eaoh mile actually and neosssarily traveled in 

gaing to glaoe or armat, and far ookt~eping 

prisoners to jail, mileage a8 provided rer in 

subdivision 4 shall ba allowed;. e . 

n 

. . a 

“4. For removing a prisoner, for each mile 

going and ooming, including guards and all other 

expewes , when traveling by railroad, tan aents; 

whan travellag otherwise than by railroad, fltteen 

oente; provided, that when more than one prisoner 

is semoved at the same time, in aaditirn to the 

foregsing, he shall only be allawed ton crnta a 

mile for eaoh edditlonal prisoner.* 

Pursuant ta the established departmental TUIW 

3 

of tit&S office and the Comptrollerla offiea, Artiiols 

10 Q, applies to all counties having a population 0r 10114s 

tbaa 40,066 inhabitants according to the pMeading Tadoral census regardless of the number of votes oas$ at 

the preoeding presidential electlo& Faystrid, Ds,anty has 

a pepulation or less than 40,000 inhabitanta; thrrefors, 

;$l..l. 1030 is applioable to that county agd fta earn0 

Article 1020, C.C.P., provides, in part, as 

r0iiOws: 

*$herlffs and Constables serving preassa 

and attending any examining oourt in the examisation of may releny ease, shall bo antitled 

to such fees a8 are fixed by law fox similar 

services in misdemaamar oaees in gstnnty Boart 

t@ be paad by the State, not ta exoasl Fear and 

Mo/lO@ ()e.OO) Dollars in any @BE, ease, raPl 
Hon. Homer D. Eok, ,Page ,3, V-112 

. 

mileage actually and nedesaarily traveled in 

going to tha plaos of arrest, and ror ewirey~~~ 

the prisoner or prisoners to jail a8 pravfdatl 

in Articles 1029 and 1030, Code of Criminal Pxvoedine, as the ,faots may be, but no mileage 

whatever shall be paid for summoning or attaohlng witnesses in the oounty where cat30 is pending. 

Provided no sherirr or oonstable ahall, rueeivr 

rros the State any l d&itional ai.leag8 ror ‘hay 

subsequent arrest ai a derendant in the same ease, 

ore in any other ,oasp in, an examining boar% ‘or in 

any distriot oourt..based upon the same oharge 6~ upon, the ‘same criminal a&., or growing out of, the safne 

criminal transaction, ihether the arrest is made 

with or without a warrant, or bei6re.or after indictment, and in no eraht shall he be .allewd to duplioate his reea ror dIeage r0r natking crreste;~fith’ 

or without warrant, or when twe or. Bmre ~*arrantta 

of arrest or oapieses are served or ooald hard bean 

served on the same defendant on. any one day.7 

In answer to your riw paotual situation, we 

are herewith enclosing a copy OS Opinion Do. O-2574, rendared ‘by this Department on August 3, 1940. Those fees 

allowed in miedemsanor cm808 (Artiole 1068, C.C,P.) may 

be taxed, b&may net exceed Foar ($4.00) Dollars, together with nileager 

In your second taotu81 81tuat1ent it is the 

opinion of this Department that the ooastible would be 

entitlpd t0 riifera (15#) 0m5 per 8ile r0r,th6 d*t 

tiles, traveled, to the plabe of l rsust and a’ total or’ 

thirty (306)’ osnte er 811e for r&arming said priaoaor to the oounty ja E 1; rirtm (1!5#) oeatu ror ,the orrioer and rirteen (15d) aents ror the’p’riaoner ,ror erah 

mile actually and neoessrrily tY!atsleil when travel1 

private oenveyanoe 0 (Binford vao Ilbbinaoa, 244 8.W. 30;3 ” 

Rowena?, when traveling b nil or btw, the, Wnsfable 

would be entitLed to ten 7 lO#) oents per mile for each 

mile going.ana ooming and ton (lo+!) o(lnts par able ?or 

+urn+ig said prisoner. 

Inasmuoh as it is the ruling of t,hfa office 

that your- bounty la 

T 

rerned by fhe:praris~ions of Article ,103o, C*,C.P., a lsa~sion or your thir& raotual~ 

situation ,is not deemed neosssary, surri0e it to say, 

the Legislature, in ,1933, 43rd Legislature, dhapter W, 

page 144, only amended Section 5 of Artiole 1029 or the 

Codes of Uriminal~ PEaoedure 0 one or iwre 0r the Artiolen 
Hon. Homer D. Eck, Page 4, V-112 

or Seotions of an Act may be amended without reenaating 

the entire statute. (39 Texo Jura, pe 127). 

- 

1. The fees due and awing a aonstable 

performing servioss on a fee basis in Fayette 

County, whose population is less than 40,000 

inhabitants according to the preoeding Federal 

Oensus, are gcverned by the provisions of Article 1030, 1020 and 1065 a? the Code ef Crlminal Prooedare, 

20 A constable in Fayette Oounty, whose 

population aocording to the preceding Federal 

Census is less than 40,000 inhabitants, would 

be entitled to fifteen (15#) cents per mile for 

the eight miles traveled to the place of arrest 

and a total of thirty f30#) cents per mile rer 

returning said prisoner to jail: IS+! for the officer and 15# ior the prisener for eaoh mile adtually and neoessarily traveled when traveling 

by private aonveyanae, 

244 9-W. SO7.) 

(Binford vs. Robinson, 

Yours very truly 

ATl!ORl0!L!?O5S5lUL OFTEEAS 

lurnell Weldrep 

APPROVED MAR. 26, 1947 

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