.

HonorableMike Driscoll Harris CountyAttorney 1001Preston, Suite 634 Houston,Texas 77002 OpinionNo. JM-601

Re: Duty of a sheriff to complywith the requirements of article 38.33 of the Code of Criminal Procedure regarding information to be obtained froma defendantconvictedof driving while intoxicated

DearMr. Driscoll:

You request our opinion in regard to the duty of the sheriff of Harris Countyunder section 1 of article 38.33 of the Code of Criminal Procedure. That sectionprovides inpart 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 CriminalProcedurewhen such records are not available in the sheriff'soffice. You indicatethat 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 fingerprintpersons they arrest, and themajority of these defendants
are never booked into the county jail, with the result that there is
no photographor fingerprintcard.

p. 2687HonorableMike Driscoll - Page 2 (JM-601)

Section 1 explicitly provides that the sheriff shall compile information "made by a law enforcement agency in connectionwith that offense." If the information has not been gathered by the law enforcementagencies 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 informationpreviously made by a law enforcement agency. Only this information should be sent to the clerk's office. We alsobelieve that this constructionof section 1 is consistent with the legislature's purpose in enacting article 38.33 - i.e., to Preserve evidence tobe 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'sofficehas also informedus 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 ismaking every effort to complywith section 1 of article 38.33,but that it is impossible todo so.

It is obvious that the sheriff has an absolute legal duty to compile the information which is listed in section 1. Attorney General OpinionE-595 (1975)held thatwhere a sheriffhas 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 CriminalProcedure,he may make an application to the commissionerscourt in compliancewith 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 alsoAttorneyGeneral OpinionR-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 fundingwill not excuse a sheriff'snonperformance of an absolute legalduty.

p. 2688HonorableMikeDriscoll - Page 3 (JM-601)

MATTOX AttorneyGeneral of Texas

JACKHIGHTOWER **First** AssistantAttorneyGeneral

MARY KELLER ExecutiveAssistantAttorneyGeneral

RICK GILPIN Chairman,OpinionCommittee
Preparedby TonyGuillory AssistantAttorneyGeneral

p. 2689