Honorable James ?i? Strawn Opinion No. O-2003 

County Attorney Re: Is an officer entitled to 

wi1iacy county half costs in mlademeenor 

Raymondville, Texas odes where the dependent is 

com+ed~~. In justice co+s 

or Is he only entitled to 

simh fees when defendant is 

convicted In the county 'court? 

(2) Who, if anyone, Is entitled 

to half costs for the com- 

., mitment and release of a 

prisoner when there is only 

one jail in the county and 

that jail is in charge of 

the sheriff? 

Dear Sir: 

Pour request for an opinicm of this department on the above 

stated questions has been received. 

We want to thank you for the able brief sub$ii&ed with ywir ?.nquiry 

which..haa~been very helpful In passing upon your questlons.~. 

We quote from your brieB aa follows: 

"In this county the queatiqn hes been rained that the 

counQ.ia not liable for half-.cpsta provided for in ar!icle 

1055 Gode of Criminal Procedure where the defendant is 

cogVf&ted and commited from,a jtitice court. It~has'been 

conteded that since the article says 'And to psy such 

half gf costs, the County Clerkshall issue his warrant 

on we County Treasurer, in favor of such officer to be 

paid out of the Road and Bridge Fund or other flmds 

not othervise appropriated.' that it vaa the intention 

of the legislature to onlf provide fees for convictions 

in the County Court. It is.argwd that if the officer~ 

vaa entitled to half fees from the justice court, that 

the justice would Leaus the warrant as he has all of the 

papers that show the amount,of fees due and~is acquainted 

with.all the facts." 
Honorable Jam&'W. Strawn, page 2 (0-2003) 

Article 1055, Code of Criminal Procedure, as amended 

by House El11 No. 205, Acts of 1939, 46th~Legislature, reads 

.as follows: 

"The county shall not be 1iabIe to the offiaer 

and witness having costs in a misdemeanor case where 

defendantpays his fine and costs.~ The'hounty .&all 

be liable for one-half of the fees of the officers of 

the Co~tit, ~when the defendant falls to pay his fine 

and lays his fine out in the county jail or discharges 

the same by means of working such fine out on the 

county roads or on any county project. And to pay 

such half of costs, the County Clerk shall issue 

his warrant on the Gounty Treasurer in favor of such 

officer to be paid out of the Road and Bridge Fund 

or other -funds not otherwise appropriated." 

Article 1055, supra, does not in any way make any distinction between the county or justice court. It would seem, 

to be exactly contrary to the intention of the Legislature 

to allow'the fees in the county court and'not inthe justice 

court. We believe that it was the Intention of the'Leg.islature to provide some compensation for officers where they 

secure convictions against defendants who are unable to pays 

their fines and costs In misdemeanor cases but staisfy or 

discharge the same by working such fines out on the county 

road~or on any~ county project or lay the same out In the, 

county jail. The issuing of the warrants by the county clerk 

for half costs as provided by Article 1055, supra, is a ministerial duty of the county clerk and said provision In no 

way restricts the application of said article to cases tried 

in the county court. 

Article 3748 of the Revised Civil Statutes of Texas, 

1895, read as follows: 

"Whenever a convict has been committed to jail 

in default of payment of fine and costs adjudged against 

him, has satisfied such fine and cost in full by labor 

in the workhouse, on the county farm, on the public 

roads of the county orupon any public works of the 

county, said county in whleh said conviction washad 

shall be liable to each~ officer and witness having 

costs In the case against said~convict for only onehalf of such costs, and the county judge of said county 

shall issue his warrant upon the county treauurer in 

favor of~each officer and witness fcrrone7half of'all 

such legal costs as may'have been taxed up against 

said convict, not to include commissions, and the same 
. - 

Honorable James W. Strawn, page 3 (o-2003) 

shall. be p&fi'out of~:the~~oioad~~~dI-Bridge Fund of 

the county or out of any other county funds not otherwise appropriated." 

The court, in the case of Fears v. Ellis County, 49 

S.W. 139, In construing Article 3742, supra, among other 

things, held In effect that the county attorney was entitled 

to half fees for convictions in both county and.justice 

courts. 

In answer to your first question, you are ,respectfully 

advised that it is the opinion of this department that any 

officer who is entitled to half costs under Article 1055, Code 

of Criminal Procedure, supra, is entitled to such costs regardless of whether the case is tried in the county or justice 

court. 

Referring to your second question, we quote from Texas 

Jurisprudence, Vol. 38, pp. 431, 432 and 433 as follows: 

"The ancient officer of sheriff and constable 

are recognized by our Constitution and statutes. From 

the statutory provisions it appears that process of all 

the courts is addressed to the sheriff of the county 

and to the constable of the precinct, and that the 

power and duty of executing process are imposed equally 

on both. Also, sheriffs, constables and marshals are 

peace officers, and, as such, are authorized to execute 

criminal process and to make arrests without warrant in 

proper cases. . . . 

"A constable is an administrative officer elected 

to serve in a precinct In which a justice court functions, having functions analagous to those of the 

sheriff. It Is his duty to execute and return according to law all process, warrants and precepts to him. 

directed and delivered by any lawful officer, attend 

upon all justice courts held in his precinct and perform all such other duties as may be required of him 

by law. He is authorized to execute process issuing 

out of the county and district courts as well as of 

the justice court of his precinct, and this authority 

extends to process delivered to him by the plaintiff 

in the writ or by his attorney, as well as to process 

handed to him for execution by the clerk of the court 

or sheriff." 

Article 6885, Vernon's Annotated Civil Statutes, reads 

as follows: 
Honorable James W. Strawn, page 4 (O-2003) 

"Each constable shall execute and return according to law all process, warrants and precepts to him 

directed and delivered by any lawful officer, attend 

all justice courts held in his precinct and perform 

all such other duties as may be required of him by 

law." 

Article 787, 789, 788, 795, 796, 797, 783 and Article 

1067, Code of.CrimLnal Procedure reads as follows,: 

YArt. 787. Pay or jail. 

When a judgment has been rendered against a defendant for a pecuniary fine, if he is present, he shall 

be lmprosioned In jail until discharged as provided by 

law. A certified copy of such judgment shall be sufficient to authorize such imprisonment. 

"Art. 789. Capias shall recite what. 

Where such caplas issues, It shall state the 

rendition and amount of the judgment and the amount 

unpaid thereon, and command the sheriff to take the 

defendant and place him In jail until the amount 

due upon such judgment and the further costs of collecting the same are paid, or until the defendant is 

otherwise legally discharged. 

"Art. 788. If defendant is absent. 

When a pecuniary fine hasbeen adjudged against 

a defendant not present, a capias shall forthwith be 

issued for his arrest. The sheriff shall execute the 

same by placing the defendant in jail. 

"Art. 795. Authority for imprisonment. 

When, by the judgment of the court, a defendant 

is to be imprisoned in j,ail, a certified copy of such 

judgment shall be sufficient authority for the sheriff 

to place such defendant In jail. 

“Art o 796. Capias for imprisonment. 

A capias Issued for the arrest and'commltment of 

one convicted of a misdemeanor, the penalty of which 

or any part thereof is imprisonment in jail, shall 

recite the judgment and command the sheriff to place 

the defendant in jail, to remain the length of time 

therein fixed; and this writ shall be sufficient to 

authorize the sheriff to place such defendant In jail. 

"Art. 797. Discharge of defendant. 

A defendant who has remained in jail the length 

of time required by the judgment shall be discharged. 
. 

Honorable James W. Strawn, page 5,(C)-2003) 

The sheriff shall return the copy of the judgment, 

or the capias under which ~the defendantwas imprisoned, 

to the proper court, stating how it was executed. 

"Art. 783. As to fine. 

When the defendant is only,finedthe judgment 

shall be that the State of~Texa~s r$i?overof the-Tdefendant the amount of such fine and.all.costs of the,.-prosecutlon, and that the,defendant, .if:'present, be ~commltted to jail until such fine ~andz~costs are paid; or 

if the defendant be not present.:,that-a capias..,forthwith issue, commanding thesheriff;to,arrestthe defendant and commit hlm~to jall,~untll~such ~fine~and,costs 

are paid; also, that. executionmay 3ssue against the 

property of such defendant forthe~ amount-of such ,fine 

and,costs. 

"Art. 1067. Fees of~peade';:officers. 

Constables, marshals orother'peace off&k-who 

execute process and perform :se+ces. four ,lust$ces’ln 

criminal actions, shall receivethe same feesallowed 

to sheriffs for the same services. 

Article 1065, Cod.e~of;Crlminal'-,Proaduj?e(reads in 

part as follows: 

"The following fees shall be~..allowed:the sheriff, or 

other pem officer performing~the.:same serclces in misdemeanor cases, to be taxedi,against the defendanton 

conviction. 

II 

. . . 

“5. par each. commitment ,or release,,~.one dollar." 

The statutes prescribing:~fees~:,for"~cert8ln.6fficers ,. 

for definite services performed. authorisesthose officers 

who are compensated on a ,fee,,bas'isto ,.recelve:a ,deflnite 

fee for a certain servLce,performed and Lwhenany officer 

performs any such duty he is entitled to the specific fee 

provided for such service. ;,' i ~. 

By virtue 'of the foregoing statutes..you are respectfully.advised that it is'the~~lnlonof this department that 

a constable has the same 1egal"power and authority to execute 

a commitment or release, as a sheriff, when the release or 

commitment is directed or addressed to the sheriff,of the 

county and to the constable of the precinct. Therefore, the 

officer executing the commitment or'reIeaee'would be entitled 

to the fee provided by law for executing such commitment or 

release. 
Honorable James W. Straw& page~6 (o-2003) 

Trusting that the foregoing fully answers your Inquiries, 

we remain' 

Yours very truly, 

ATTORNEXOENEFUL OF TEXAS 

By 

Ardell Williams 

Assistant 

AW:jm