Honorable James?i?

Strawn Opinion No. O-2003 County Attorney Re: Is an officerentitled to wi1iacycounty halfcostsinmlademeenor Raymondville,

Texas odes wherethedependentis com+ed~~. In justice co+s or Ishe onlyentitled to simhfeeswhendefendant is convicted

In the county'court? (2) Who, if anyone,Is entitled to halfcostsfor thecom-

., mitmentandreleaseof a prisoner

whenthereisonly one jailinthe countyand that jailis in chargeof the sheriff?
DearSir:
Pourrequestforan opinicmof thisdepartment on theabove statedquestions

hasbeenreceived.
We wantto thankyou for theablebriefsub$ii&ed withywir ?.nquiry which..haa~been

veryhelpfulInpassinguponyourquestlons.~.
We quotefromyourbrieBaa follows:
"Inthiscountythequeatiqn hesbeenrainedthatthe counQ.ianot liableforhalf-.cpsta providedforinar!icle 1055Godeof Criminal Procedure

wherethedefendant is cogVf&ted

andcommited

from,ajtiticecourt. It~has'been conteded thatsincethearticlesays 'Andto psysuch halfgf costs,theCountyClerkshall issuehiswarrant on we CountyTreasurer, in favorof suchofficer tobe paidoutof theRoadandBridgeFundor otherflmds not othervise

appropriated.'

that itvaa the intention of the legislature

to onlfprovidefees forconvictions in theCountyCourt. It is.argwd thatif theofficer~ vaa entitled

tohalffeesfromthe justice court,that the justice

wouldLeausthewarrantas he hasallof the papersthatshowtheamount,of feesdueand~isacquainted 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 .asfollows:

"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,

~whenthe 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 ~thedefendantwas 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$i?overofthe-Tdefendant the amount of such fine and.all.costs of the,.-prosecutlon, and that the,defendant, .if:'present, be ~commltted to jail until such fine ~andz~costs are paid; or if the defendant be not present.:,that-acapias..,forthwith issue, commanding thesheriff;to,arrestthe defendant and commit hlm~to jall,~untll~such ~fine~and,costs are paid; also, that.executionmay 3ssue againstthe property of such defendant forthe~ amount-of such ,fine and,costs.
"Art. 1067. Fees of~peade';:officers. Constables,marshals orother'peace off&k-who execute process and perform :se+ces. four ,lust$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 ,orrelease,,~.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,performedand Lwhenany officer performs any such duty he is entitled to the specific fee provided for such service. ;,'i~.

By virtue 'ofthe foregoing statutes..you are respectfully.advised that it is'the~~lnlonof this department that a constablehas 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'wouldbe 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