. 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Opinion No. JM-601 

Re: Duty of a sheriff to comply with 

the requirements of article 38.33 of 

the Code of Criminal Procedure regarding information to be obtained 

from a defendant convicted of driving 

while intoxicated 

Dear Mr. Driscoll: 

You request our opinion in regard to the duty of the sheriff of 

Harris County under section 1 of article 38.33 of the Code of Criminal 

Procedure. That section provides in part the following: 

When a person is finally convicted of an 

offense of driving while intoxicated or [involuntary intoxication while operating a motor 

vehicle], the clerk of the court shall mail a 

notice of the conviction to the sheriff of the 

Code Grim. Proc. art. 38.33, $1. You ask how the sheriff of Harris 

County may comply with the statutory requirements of section 1 of 

article 38.33 of the Code of Criminal Procedure when such records are 

not available in the sheriff's office. You indicate that this statute 

requires the sheriff to compile information from law enforcement 

agencies involved in the offense. In Rarris County, a minimum of 32 

municipal police agencies, eight constables' precinct offices, the 

sheriff's department and the Texas Department of Public Safety are 

involved in the prosecution of these offenses. The sheriff's office 

also indicates that some of these agencies do not photograph or 

fingerprint persons they arrest, and the majority of these defendants 

are never booked into the county jail, with the result that there is 

no photograph or fingerprint card. 

p. 2687 
Honorable Mike Driscoll - Page 2 (JM-601) 

Section 1 explicitly provides that the sheriff shall compile 

information "made by a law enforcement agency in connection with that 

offense." If the information has not been gathered by the law 

enforcement agencies involved in the offenses, the sheriff is under no 

duty to generate the information. We believe that the sheriff's duty 

under section 1 extends only to compiling information previously made 

by a law enforcement agency. Only this information should be sent to 

the clerk's office. We also believe that this construction of section 

1 is consistent with the legislature's purpose in enacting article 

38.33 - i.e., to Preserve evidence to be used in subsequent criminal 

proceedings See Patterson v. City of Dallas, 355 S.W.2d 838 (Tex. 

Civ. App. - Dallas 1962, writ ref'd n.r.e.) (statute should be 

construed to give effect to legislative intent). 

The sheriff's office has also informed us that its Identification 

Division has the responsibility of compiling the required information 

and providing it to the clerk's office. The division has a staff of 

21 persons who are primarily responsible for photographing and 

fingerprinting prisoners in the county jail, as well as providing 

forensic services, photo-lab and fingerprint experts for the criminal 

courts. These deputies processed 82,161 prisoners during 1984. You 

argue that the division is making every effort to comply with section 

1 of article 38.33, but that it is impossible to do so. 

It is obvious that the sheriff has an absolute legal duty to 

compile the information which is listed in section 1. Attorney 

General Opinion E-595 (1975) held that where a sheriff has an absolute 

legal duty to perform a function of his office, the lack of a 

sufficient number of deputies or inadequate funding will not excuse 

his nonperformance. If the sheriff lacks sufficient staff to comply 

with section 1 of article 38.33 of the Code of Criminal Procedure, he 

may make an application to the commissioners court in compliance with 

article 3902, V.T.C.S. However, the commissioners court has 

reasonable discretion in funding the sheriff's office. See V.T.C.S. 

art. 3902; see also Attorney General Opinion R-595 (1975).- 

SUMMARY 

A sheriff's duty under section 1 of article 

38.33 of the Code of Criminal Procedure extends 

only to compiling the described information previously made by a law enforcement agency. Only 

this information is required to be sent to the 

clerk's office. The sheriff is under no independent duty to generate the information. 

The lack of a sufficient staff or inadequate 

funding will not excuse a sheriff's nonperformance 

of an absolute legal duty. 

p. 2688 
Honorable Mike Driscoll - Page 3 (JM-601) 

MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tony Guillory 

Assistant Attorney General 

p. 2689