Hon. Geo. H. Sheppard 

Comptroller of Public Accounts 

Austin, Texas 

Dear Sir: 

Opinion NO. 0-1468 

Re: Is the sheriff of Wlllacg County entitled 

to mileage fees according to stated facts? 

We are in receipt of your request concerning the 

following question: 

"The Sheriff of Willacy County went to 

the State line on Justice of the Peace Warrant 

for a defendant charged with burglary of a 

store in Will&g County--a felony case. He, returned with the prisoner to Willacy County; and 

the Grand Jury returned an indictment against 

the defendant for the'offense of burglary, based 

upon the testimony given in the Examining Trial. 

Upon trial of the case It was learned the defendant was a juvenile and the case was transferred 

to the County Court. 

"Is the Sheriff of Willacy County entitled to his mlleage fees for going to and returning from the place of arrest? 

"You will notice in this/connection that 

this fee is based upon the charge filedin the 

Examining Court. .I refer you to Article 1020, 

C.C.P. 

"If you hold that the Sheriff 5s entitled 

to the fee, then would the same rule apply to 

reducible cases with reference to the fee?" 

Article 1019, as amended, C.C.P., provides: 

"If the defendant is indicted for a felony 

ana upon conviction his punishment is by fine or 

confinement in the county jail, cr by both such 

flne and confinement in the county jail or convic- 
Hon. Geo. H. Sheppard, page 2 o-1468 

tea of a misdemeanor, no costs shall be paid by 

the State to any officer. All costs in such cases 

shall be taxed, assessed and collected as in misdemeanor cases." 

Article 1020, as amended, C.C.P., in its second 

and fourth paragraphs reads as follows: 

"Sheriffs and Constables serving process and 

attending any examining court In the examination of 

any felony case, shall be entitled to such fees as 

are fixed by law for slmllar services in misdemeanor 

cases in County Court to be paid by the State, not to 

ex~ceed Four and No/100 ($4.00) Dollars in any one case, 

and mileage actually and necessarily traveled in goLng 

to the place of arrest, and for conveying the prisoner 

or prisoners to jail as provided in Articles 1029 and' 

1030, Code of Criminal Procedure, as the facts may be, 

but no mileage whatever shall be paid for summoning 

or attaching witnesses in the county where case Is 

pendlng. Provlded no sheriff or constable shall ~' 

receive from the State any additional mileage for any 

subsequent arrest of a~defendant in the same case, 

or in any other case Fn an examining court or in any 

district court based upon the same charge or upon 

the same criminal act/or growing out of the same 

crlm!na% transaction; whether the arrest Is made with 

or wlthout a warrant, or before or after indictment, 

and inno event shall he be allowed to duplicate his 

fees for mileage for making arrests, with or without 

warrant, or when two or more warrants of arrest or 

caplases are served or could have been served on the 

same defendant on any one day. 

“i * * ** 

"The fees mentioned in this Article shall 

become due and payable only after the Indictment 

of the defendant for an offense based upon or 

growing out of the charge filed in-the examining 

court and upon an itemized account, sworn to by 

the officers claiming such fees, approved by the 

Judge of the District Court, and said County or 

District Attorney shall present to the District 

Judge the testimony transcribed in the examining 

trial, who shall examine the same and certify 

that he has done so and that he finds the testimony of one or more witnesses to be material; and 

provided further that a certificate from the Dlstrlct Clerk, showing that the written testimony 
Hon. Geo. H. Sheppard, page 3 o-~1468 

of the material witnesses has been filed .wlth 

said District Clerk, in accordance with the 

preceding paragraph, shall be attached to said 

account before such District or County Attorney 

shall be entitled to a fee in any felony case 

for services performed before an examining court." 

Article 1085, C.C.P., Volume 3, Title 16, "Delinquent Child", provides: 

"A proceeding against a delinquent child 

may be begun by an information based upon a 

sworn complaint, each of which shall state in 

general terms that the acts alleged constitute 

such child a delinquent child, and shall conform in other respects to the rules governing 

prosecutions for misdemeanors begun by infor- 

'~mation and complaint. many proceeding so 'bepun 

which states uvon the face of the information 

that the age of the child is under seventeen 

in the case of males and under eighteen years 

'in the case of females shall not be regarded 

as charging said child with a felony or a misdemeanor but as a dellnauent child, although 

such acts alleged would otherwise charge a 

felony or a misdemeanor. If such uleading 

does not allege the sue of the~accused then 

the accused, his or her parent, guardFan,& 

torney or next friend, may make and file an 

affidavit at any time before announcement of 

ready setting up the age of the accused, and 

on proof that such age is within the iuvenlle 

limits, the case shall be transferred to the 

juvenile docket,=, if the court is not a 

juvenile court to the prover iuvenile court, 

entered on the iuvenile docket and proceeded 

with against the accused as a dellnauent 

child upon the same information and complaint." 

IUnderscoring ours). 

, Article 5124, Revised Civil Statutes, 1925, Volume 

15, Vernon's, Title 82, "Juveniles" reads as follows: 

"The officer conveying any male to any 

State training school shall be paid by the 

County Inwhich such child was convicted the 

actual traveling expenses of such ofTficer and 

child, and five dollars additional. 

Article 5136, Revised Civil Statutes, 1925, Volum 

15, Vernon's, Title 82, supra, provides: 
Hon. Geo. H. Sheppard, page 4 o-1468 

The court committing any girl to the 

Girls' TrainFng School, in addition to the 

commitment, shall annex a carefully prepared 

transcript of the trial to aid the officials 

of the institution in better understanding 

and classlfyFng the girl. The court shall 

also designate some reputable woman to convey 

the glr1 to the institution. The cost of conveying any girl committed to this'institution 

shall be paid by the cbunty from which she is 

commltted, provided that no compensation shall 

be allowed beyond the actual and necessary expenses of the party conveying and the gLr1 conveyed . " 

Article 1020, C.C.P., dealing with fees in the Examining Court refers to "Sheriffs and Constables serving process and attending any examining court in the examlnatlon of 

any felony case, etc.," (Undersooring ours). 

In the present instance the defendant was a 

juvenile, although this fact was not revealed until 

the trial. Nevertheless the effect of'the~defendants 

age removed the case from felony classification. The 

status of the defendant was that of a delinquent chi~ld 

under Article 1085, C.C.P.; Andy since even a conviction for an offense which otherwise would be a felony 

will not alter the fact that the defendant becomes a 

delinquent child and not a felony punishable by death 

or confinement in the state penitentiary, the sheriff 

is not entitled to mileage fees for going to and returning from-the place of arrest of the minor under 

Article 1020, C.C.P. 

Several opinions have been written by this Department during prior administrations. We wish to quote from a 

leading opinion, dated October~7, 1932, by Hon. Bruce W. Bryant, 

First Assistant Attorney General, to Mr. M.M. Alexander, County 

Auditor, Henrietta, Texas: 

"In reply, you are advised that the Comptroller of Public Accounts has not for a long 

time-been allowlng fees to district clerks, sheriffs, county and district attorneys for services 

rendered In felony cases when the defendant was a 

juvenile. These officers are entitled-'to certain 

fees. for services rendered In felony cases under 

certain conditions. A felony case is one where 

the defendant may be sent to the penitentiary. 

Now a juvenile cannot be sent to the penitentiary, 
Hon. Geo. H. Sheppard, page 5 o-1468 

even though he be found guilty of committing 

acts which would constitute the commission of 

a felony if he were not a juvenile. 

"It is for these reasons that the officers 

mentioned In your letter cannot receive compensation from the State for their respective services 

incasea of this character, because as heretofore 

stated the State only pays such officers where the 

defendant Is charged with or convicted of a felony. 

This frequently works an undue hard,ship upon these 

officers, especially sheriffs and district clerks, 

especially where the Indictment does not allege 

that the defendant Is, if a male; under the age of 

seventeen years ,s, if a female, under the age of 

eighteen years. However, this is-‘a matter for the 

Legislature. It Is elementary that where the 

statute prescribes duties to be performed by a 

public officerand provldes no compensation for 

the performance of that duty, that the officer cannot collect a fee for the performance of said duty." 

[Underscoring ours). 

Your attentlon is also called to opinion dated 

October.19, 1936, by Scott Gaines, First Assistant Attorney 

General, to-the Hon. Eugene J. Wilson, County Attorney, Bay 

City, Texas, in which he holds that no fees are allowed officers for their services under the statutes of this state in 

juvenile cases tried and disposed in a county court, except 

the fee and expenses allowed the sheriff for conveying a juvenile to the institution to which he has been committed. 

A proceeding in an Examining Court against a juvenile charged with a felony Is not a "felony case within the 

purview of Article 1020, C.C.P. any more than it would be in 

an action against said juvenile in a regular county court 

action. 

We must, therefore, answer your question in the 

negative. 

It is our opinion that a sheriff is not entitled 

to mileage fees from~ the state under Article 1020, C.C.P., 

where his prisoner was disclosed to be a juvenile upon trial 

of the case resulting from Indictment for burglary based upon 

testimony given In the examining trial. 

In view of our decision it Is unnecessary to answer 

your second question. 
Hon. Geo. H. Sheppard, page 6 o-1468 

Trusting that we have satlsfactorlly complied with 

your request, we are 

ATTORNEY GENERAL OF TEXAS 

By s/Dick Stout 

Dick Stout 

Assistant 

DS:ob:wc 

APPROVED OCT 14, 1939 

sfiobert 6. Kepke 

(Acting) ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman