. - _ R-221

Hon. HomerD. 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 ,anopinion 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 -'bhimet

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. Howmuchis 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 makethe arrest and .b'*

.’23 miles ,wfth the prfsener from the point af .;. i:: making‘the ‘arrest tc the county jail ,,in his

,, :i ownautomobile? :, “3o 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 newArtiole 1029 C.C,P. as amenaed by the 43rd Legislature in 1933?11 Article 1030 

### ofthe Code of Criminal Procedure provides in part as f~ollows:Hon. HomerD. 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 whenthe charge is a felony: *. 0

. provided, that in counties that have a population of less than forty thousand inhabitants, as shownby 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 , whentraveling by railroad, tan aents; whantravellag otherwise than by railroad, fltteen oente; provided, that whenmore than one prisoner is semoved at the sametime, 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&Soffice and the Comptrollerla offiea, Artiiols 10 Q,applies to all counties having a population 

## 0r10114s tbaa 40,066 inhabitants according to the pMeading Tadoral census regardless of the numberof votes oas$ at the preoeding presidential electlo& Faystrid, Ds,antyhas 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 mayreleny ease, shall bo antitled to such fees a8 are fixed by law fox similar services in misdemaamar oaees in gstnntyBoart t@ be paad by the State, not ta exoasl Fear and Mo/lO@ ()e.OO) Dollars in any @BE, ease, raPlHon. HomerD. 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 maybe, but nomileage whatever shall be paid for summoningor attaohlng witnesses in the oounty where cat30 is pending. Provided 

## nosherirr or oonstable ahall, rueeivr rros the State any l d&itional ai.leag8 ror ‘hay subsequent arrest 

### ai a derendant in the same ease, orein any other ,oasp in,an examining boar%‘or in any distriot oourt..based uponthe sameoharge 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 whentwe or.Bmre~*arrantta of arrest or oapieses are served or ooald hard bean served on the samedefendant on.any one day.7 In answer to your 

## riw paotual situation, we are herewith enclosing a copy OSOpinion Do. O-2574, rendared ‘by this Department onAugust 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 1; 

## rirtm (1!5#)oeatu ror ,the orE rioer and rirteen (15d) aents ror the’p’riaoner ,ror erah mile actually and neoessrrily tY!atsleil whentravel1 private oenveyanoe 0 30;3 ” (Binford vao Ilbbinaoa, 244 8.W. Rowena?, whentraveling b nil or btw, the,Wnsfable would be entitLed to ten 7lO#) 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 amendedSection 5 of Artiole 1029 or the Codesof Uriminal~PEaoedure0 one or iwre 0r the ArtiolenHon. HomerD. Eck, Page 4, V-112

or Seotions of anAct maybe amendedwithout 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 whentraveling by private aonveyanae, 244 9-W. SO7.) (Binford vs. Robinson,

Yours very truly ATl!ORl0!L!?O5S5lUL

OFTEEAS

lurnell Weldrep

APPROVED

MAR.26, 1947 iiikdddulyp A'Y!TOIRGI

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