Hon. Geo. H. Sheppard

Comptroller of PublicAccounts Austin, Texas

Dear Sir: OpinionNO. 0-1468 Re: Is the sheriff ofWlllacg County entitled to mileage fees according to stated facts?

We are in receipt of your request concerning the following question:

"TheSheriff of Willacy Countywent to the State line on Justice of the Peace Warrant for a defendant chargedwith burglary of a store inWill&g County--a felony case. He,returned with the prisoner to Willacy County; and the Grand Jury returned an indictmentagainst the defendant for the'offense of burglary, based upon the testimonygiven in the Examining Trial. Upon trial of the case Itwas learned the defendant was a juvenileand the casewas transferred to the County Court.

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

"Youwill notice in this/connectionthat this fee isbased upon the charge filedin the Examining Court. .Irefer you to Article 1020, C.C.P.
"Ifyou hold that the Sheriff 5s entitled to the fee, then would the same rule apply to reducible caseswith 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 isby 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 shallbe taxed, assessed and collected as in misdemeanor cases."

Article 1020, as amended, C.C.P., in its second and fourth paragraphsreads as follows:

"Sheriffsand Constables servingprocess and attending any examining court In the examination of any felony case, shallbe entitled to such fees as are fixed by law for slmllar services inmisdemeanor 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 jailas provided inArticles 1029 and' 1030, Code of Criminal Procedure,as the factsmay be, but no mileagewhatever shallbe paid for summoning
or attachingwitnesses in the countywhere case Is pendlng. Provldedno sheriff or constable shall ~' receive from the State any additional mileage for any subsequentarrest 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 Ismade with
orwlthout a warrant, or before or after indictment, and inno event shall he be allowed to duplicate his fees for mileage formaking arrests,with orwithout 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 itemizedaccount, sworn to by the officers claiming such fees, approved by the Judge of theDistrict Court, and said County or District Attorney shallpresent to theDistrict 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 theDlstrlct Clerk, showing that the written testimonyHon. Geo. H. Sheppard,page 

### 3 o-~1468

of the materialwitnesses has been filed .wlth 

### saidDistrict Clerk, in accordancewith the precedingparagraph, shall be attached to said account before suchDistrict or CountyAttorney shallbe entitled to a fee in any felony case for servicesperformed before an examining court."
Article 

### 1085,C.C.P.,Volume 

### 3, Title 

### 16, "Delinquent Child",provides:

"Aproceedingagainst a delinquent child may be begun by an informationbased 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 statesuvon the face of the information that the age of the child is under seventeen in the case of males and under eighteenyears 'inthe case of females shall not be regarded as charging said childwith a felony or a misdemeanor but as a dellnauent child, although such acts allegedwould 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 settingup the age of the accused, and on proof that such age iswithin the iuvenlle limits, the case shall be transferred to the juvenile docket,=, if the court is not a juvenile court to the prover iuvenilecourt, entered on the iuveniledocket and proceeded with against the accused as a dellnauent child upon the same informationand complaint." IUnderscoring ours).

, Article 5124, Revised Civil Statutes, 1925,Volume 

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

"Theofficer 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 committingany girl to the Girls' TrainFng School, in addition to the commitment, shallannex a carefullyprepared transcript of the trial to aid the officials of the institutionin better understanding and classlfyFng the girl. The court shall also designate some reputablewoman to convey the glr1 to the institution. The cost of conveying any girl committed to this'institution shallbe 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 conveyingand the gLr1 conveyed

."

Article 1020, C.C.P.,dealing with fees in the Examining Court refers to "Sheriffsand Constables servingprocess and attending any examining court in the examlnatlon of any felony case, etc.," (Undersooringours).

In the present instancethe 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 defendantwas that of a delinquent chi~ld under Article 

### 1085,C.C.P.;Andysince even a conviction for an offensewhich otherwisewould 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-theplace 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:

"Inreply, you are advised that the Comptroller of PublicAccounts has not for a long time-been allowlng fees to district clerks, sheriffs, county and district attorneys for services rendered In felony caseswhen the defendant was a juvenile. These officersare entitled-'to certain fees.for servicesrendered In felony cases under certain conditions. A felony case is one where the defendant may be sent to the penitentiary. Now a juvenilecannot 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 officerswhere the defendant Is chargedwith or convicted of a felony. This frequentlyworks an undue hard,ship upon these officers, especially sheriffsand district clerks, especiallywhere the Indictmentdoes not allege that the defendant Is, if a male; under the age of seventeenyears,s, if a female, under the age of eighteenyears. However, this is-‘a matter for the Legislature. It Is elementary that where the statuteprescribesduties to be performedby a public officerand provldes no compensation for the performance of that duty, that the officer cannot collect a fee for the performance of saidduty." [Underscoringours).

Your attentlon is also called to opiniondated October.19, 1936, by Scott Gaines, First Assistant Attorney General, to-theHon. Eugene J. Wilson, County Attorney,Bay City, Texas, inwhich he holds that no fees are allowed officers for their servicesunder the statutes of this state in juvenile cases tried and disposed in a county court, except the fee and expenses allowed the sheriff for conveyinga juvenile to the institutionto which he has been committed.

A proceeding in an Examining Court against a juvenile chargedwith a felony Is not a "felonycase within the purview of Article 1020, C.C.P. any more than itwould 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 isnot entitled to mileage fees from~the state under Article 1020, C.C.P., where his prisonerwas disclosed to be a juvenileupon trial of the case resulting from Indictment for burglary based upon testimonygiven In the examining trial.

In view of our decision it Is unnecessary to answer your secondquestion.Hon. Geo. H. Sheppard, page 

### 6 o-1468

Trusting that we have satlsfactorllycompliedwith 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 CommitteeBy s/BWB Chairman