,.~. 

Hon. Stanley Timmons opinion No. O-2104 

County Attorney Fte: 

Hsrrison.County 

Overloading - Constables - 

Fees - Arrests - Release; 

Marshall, Texas 

Deer Sir: 

We have received end carefully considered your request 

?,or ti opinion upon the following questions: 

"Question No. 1: When a local constable.1~ 

working with, acaompanying,.~.and assisting a:repre-~ 

"mh&~A. 2n- -zJz*A%& ti %! 'A%%-' -al& vf-e&h illspector.of. the..llcense adweight division of the. 

Department of Public~Safety of the,S%ate~'of Texas, 

and such constable and-inspeator acting together 

apprehend stop, and weigh a truck under the.provislons of &tide 827a,-Section 5 of the..Penal Code 

which.reads as'.+ollgws: ~ 

U'No commercial motor vehicle; truck 

trailer or semi-trailer shall be operate 8 

tractor, 

on ttie 

public &Lghway outsiae.the city~limlts of an incorporated,city or towa.with a loaa.exceedl+ TOO0 

pounds or anysuch vehicle.or train or,.combihatidn 

of vehicles; t.3dn0 motor vehicle, commercial, 

truck .trailer, or semi-trailer, having a rester 

weight than 600 pounds per inch width of $.re ii upon 

.any wheel concentrated upon the surface of the 

bighway shall be operated on'the.public highway ,outside the limits of an.incorporated citg' or town; 

provided ~,however+ that the provisions of this section shall notbecome effective until'the first day 

of January, ~1932." 

"And at that time the lnspecto>. for the.llcense 

&a weight division of the Department of Public Safety 

of the State of Texas, aids not place the defendant 

'under arrest ana'take before .a magistrate inst&nter, 

but in lieu of.that, gives to the defendant in the case 

~.a ticket in which the defendant promises to appear before some particular court and thereafter, and prior to 
Hon. Stanley Timmons, Page 2 (C-2104) 

the date on which the defendant agrees. to appear, 

the constable has prepared a complaint, warrant, 

and subpoena, serving the warrant on the defendant’. 

when he makes the appearance and prior to a trial 

of the consideration, is he, the constable, ehtitled to the arrest fee of two dollars together with 

a charge for subpoena service of any person or persons actually subpoenaed? 

“Question No. .2: If a constable is accompanying.. and wa#Lng with, and assisting an employee or’ 

inspector of the license and weight division of the 

Department of Public Safety of the state of Texas, ana 

upon apprehension by such inspector-of the lLcen%e 

and wefght division of the Department of Public Safety and the Constable, a driver of a truck is charged 

for the violation oft Article 827a of the Penti code 

wherein the person charged ,is given a notice t.9 appear, *a does, as to same, make his appearance at a 

subsequent date as agreed upon at the %ims of his apprehension and makes ti plea’ qf guilty before the 

court;’ the Inspector for the license. and weight dlvision of the Bepartment of Public Safety being absent, 

lri th8 aonstable who wasp with, and assisting the in- 

,$pector, entitled to colle&Lon of the fine and cost 

+nd a release fee when acceptlag such fine and cost 

and releasing %he defendant from the terms of the 

judgmept assessed? 

*Question ;Nor 3: If ~a constable is accompanying, wcWd.ng with and assisting an inspector of the 

license and weight division of the Department of Pub- 

,lice Safety and upon apprehension by such inspector 

and constable a driver of a truck is charged for the 

violation of &tide 827a of the Penal Code of the 

State of Texas wherein the person there charged is 

given a notice to appear but prefers to then and ,there 

enter his plea before a proper magistrate and is saceompanied by the constable to the office of the court 

end makes his plea and .Is assessea~ a money judgment end 

the fine and cost Is then end there ,paId to the constable who receipts the defendants therefor is the constable entitled to a release fee of one A 01la.r upon the 

pagznt of such fine and release by him ,of the defendArticle 1065 Vernon’s Annotated Texas Code of Criminal 

Procedure, reads as fo 3 lows: 
Hon. Stanley Timmons, Paged ‘3 (O-2104) 

“The following fees shall be :allmded the’ 

sheriff, or other peace dfficer performing .the ‘. 

same .services. ih misdemeanor cases, :to -;be taxed 

against the defendazit one eonvictlon: 

: ‘11. For .executing each, war&d of a&&d or 

caplas; or. ~making arrest ~w’ithout warrant; ~two: dollars. : 

“2 . For s&oning each witne’ss,. se’vsnt&five 

cents. 

lljs F~or “’ serving. any,.writ n& .otherwise. pro-: 

viaea for, one a0um. 

“4 . For takikg &a approving each bona, &a 

returting .the same to the court :house, when necessary,. one a0im emfifty cents. 

~, ‘.:. 

la. 

115.. ..’ For, each~ &ommitment nor r.elkase, q.e. dol-, 

,.. “6. Jury. fee,. in, each case where a jury is 

actually summoned, one doliar. 

‘76. For attending .a prisoner on habeas ‘corpus, 

wheh: such ~prlsoner upon~ a hesi%ng, has been. remended to, custody, or. h, eld to ‘bails, for each day’s attendance, four a0ixar.9. ,~~ 

“8. For conqeying a wit&& attached .b$ &Lm to 

any court: out of .his county,; four doUar.s: f,or~ each 

day or fraationsl part ~thereof~, am&his. actual necesstiy expenses by the. nearest practicabl~e .public con- 

“veyance,, the amount to be:stated by said~ officer,’ 

under oath and’approved by the :juage of the court-, 

from which the attachment Lssued. 

“9. For conveylug .a pr&soner afi‘er ~convictloh 

to the county .jail, for~.~each mile going and co’ming, 

by the nearest practicable route gy private comeyante, ten :eents a tile, 

half cents a mile. 

or: by railway, seven. and one- 

~. lllO. ~For conveying a prisoner arrested Cm a 

warrant or capias,: issued from another county to %he 

court or jail, oft the counQ f mm which then’ process 

was issued, for each mile traveled going and combng, 

by the nearest practicable route, twelve and onehalf cents. 
Hon. Stanley Timmons, Page 4 (O-2104) 

"11. .For each mile he may be compelled to 

travel in executing criminal process ana summoning 

or attaching witness, seven and one-half cents. 

For traveling in the service of process not otherwise provided for the sum of seven and one-half 

cents for each miie going end returning. If two 

or more persons are mentioned in the same writ 

or two or more writs in the same case, he shad 

charge only for the distance actqally at@ necessarily traveled in the samertt 

Article 1011, Vernon's Annotated Texas Code of Crimi- 

_ nal Procedure Drovides that "no item of costs shall be taxed for 

a purported service which was 

for which no fee is expressly 

not performed 

provided for;I' 

or for a service 

This department has repeatedly'ruled that constables 

and sheriffs are not entitled to fees except for Lega& services 

performed as outlined by the fee statutes. See opinions Nos. 

O-106 O-b93 o-768, o-963, 0-1160 and many other opinions of 

this aepartdnt. 

Article 827a, Section 5, Vernon's Annotated Texas Penal 

code, reads as follows: 

"Noncommercial motor vehicle, truck-tractor, 

trailer or semi-trailer shall be operated on the 

public highway. OUtSm of ~the.limits of ti incorporated city or town with a load exceeding seven 

thousand (7000) pounds on any such vehicle or 

train or combination of Vehicles; SXY3 no motor 

vehicle, commercial motor vahfcle, truck-tractor, 

trailer or semi-trailer .having 2 greater weight 

than six hundred (600) pounds per inch width of 

tire upon any wheel concentrated upon the surface 

df the highway shall be operated on the public 

highways outside of the limits of an incorporated 

city or town; provided, however, that the provi~- 

sions of this section shall not become effective 

until the first day of January, 1932." 

Procedure, 

Article 239, Vernon's hnQtat8d Texas Code of Criminal 

reads as follows: 

'IA person is said to be arrested when he has 

been actually placed under restraint or taken into 

custody by the officer or -person exeauting the warrant of arrest."~ 
Hon. Stanley Timmons, Page,~'5 (O-21$), 

Procedure, 

Article 217, Veruonts *dated Texas Code 

r&as as follo~s:~ .~. 

; 

"In each c&ie~~&&mrated in *Iii& chapter; 

the person making the arrests shal$ immediately 

take the 'persod &rrGst&d'b&fbre the magist?'ate 

who may have ordered the arrest, OI! before 'the 

nearest magistrate where the arrest was made 

without & order." 

of Criminal 

Article 319; Vernonts Am&ate&Texas Penal code, reads 

as follows: 

11&y officer, jailer, k.&ard having the. 

legal custody ~0f.a person~accused 02, donvicted 

of a misdeme~~.r~who wilftily,permits such person to escape or to.be r:escced shaQ be fined .1, 

not &CeediIIg 0~8, thOu?&d dQii~&." 

Article 3?2, Vernont,s.Ann+ated Taxas..Penal code, reads 

" 'as foUlotiS: 

legal 

",Any officer,,jailer, or guard who bas,the 

Oust0ay,O~ ~a ~p&+&on.adcused or'~d6nVicted. 

of a misderqeanor who negligently permits such 

.per.son ,to escape or,,to be rescued shall be fined 

not' ~excee+qg five &indred flolI@ir~.'~* Y : 

., . 

'Articl&91&',~ Ve&oD.ts.Anziotated Texa&:-Code '6s Criminal 

Proceduri3, 'reads as~'foXl&is: 

.ltAll judgments <'end ‘f$i$l 'b&&i 'of‘the ~j~us< ,' 

tice shall be ~+endered'.id open: cour~~~~d'ent~red 

upon his docke%,Ft" ':~ ,, .: 

Procedure 

.Artitile 917, Vernon's Annotate? Texas 'cdd8 Of Criminal 

; reads as follass: 

"il'iheR jd&elit :,in. c&e cjf:&&iCtion~~in &I 

~~C$minal action'be?ori,.a ',justs&e oft the .peace,, 

shall be that the .&at& of Texas recover of the, 

defendant the fine and costs, and that the clefenqand renaa in custody of the sheriff until the 

fine and costs a3%Daid: 

to colle~ct the same." ( ' 

,Aqlzicle 920,'yernonts Annotated Texas C$e,of Criminal 

Procedure, reads.as,follows: 
Hon. Stanley Timmons; Page 6 (O-2104) 

“A defendant placed in jail on account of 

failure to pay the fine and costs can be discharged on habeas corpus by showing: 

“1. That he is tod poor to pay the fine and 

costs, ana 

“2. That he has remained in jail a sufficient 

length of time to satisfy the fine and costs, at 

the rate of three dollars for each day. 

“But the defendant shall, in no case under 

this article, be dlschWg8d until he has been 

imprisoned at least ten days. and a justice of 

the peace may discharge the Defendant upon his 

showing the same cause, by application to such 

justice; and when such,application is ~granted, 

the justice shall note the same on his docket." '~ 

Article 792,~Vemion's Annotated Texas Penal Code, reads 

as follows: 

"In case: of *y~pers& arrested for violation 

of the-preceding artlcl.as relating ta speed of Vehicles, unless such,person so arrested shall demand 

that he be taken forthwith before a court of competent jurisdicticin for'an Immediate hearirig ~the 

arresting officer shall take the license number, 

name ana 1nak8 of the car, the~name and address of 

the operator or driver thereof and rdtify such 

operator or cirivt3? in writing $0 appear before a 

designated court of competent~jurusaiction at a time 

and place to be specifled in such written notice at 

least five days subsequent to the date thereof,~and 

upon the promise in writing of such person to appear 

at such time and place; such 'officer shall forthwith 

release such person from custody; Any person wilfully 

violating such promise, regardless of the disposition 

of the charge upon which he was originally arrested, 

shall be fined not less than five nor more than two 

hundred a0ilars.~~ 

Article 792, supra, authorizes the "giving of a ticket 

or written notice"~ by the arresting officer to a person arrested 

for violation of penal articles preceding Article 792, relating 

to the speed of motor vehicles, and provides a penalty for the 

violation of the offenderts promise to appear. This article 

does not apply to Article 827a, Section 5, supra. There~is no 
Hon. Stanley Timons, Page 7 (,C+gm4) ~,, . ..., :- : ,. :. ,::: 

statti$oory aiitborlty for the i,ssuanc,e of $&kets.~or written notices:bqi-' ar,rf#$@;:?f$i+*:& 'in d~~r~o+a~ng':?2&es., : 

., .,', 

Opinion No,. 0-1189,of this department holds that 

-~-bnly whe+ 'th8, facts s&w. that' t&=&f&~a$-, is, in, the., actual 

and lentu'cu+dy of. ti,jonst@i$~ .at~thejtitn?‘he'plgads-guiItjr 

and~piC~ys~hls 'fihe~~is .th8.-donstable entStled't6 a Felease fee. 

Th$Sl.opinio,q.fur$her &$s~:$hat,,w+~n the aefendant malls his 

fine; v$wt,arily appear~s:;,~~ne:~r;appe~s Yn,the Leaal Oust0ay 

of'snother' off$&&'the: aons'table.$s not .@titleCi t+a-:r+ease 

fee. ye :enc+ose a copg.,of. said, opinic$ .:.~:-,.~ . . : 

." ., 

Op'iaOn &0:.$-14!j% .bf.thls' ae&rtmetit. h&ds,;:&m6ng 

other thlhgs; that constables. aid .sheriffs.d¬ have the., 

authority to make arrests without warrants for violatldns of 

the.&oad limi.t,l.aw..i *id opinion,pont+ins~,a~full discussion 

:’ of ~+iaz~@?tt8r._q y8 enc$se,herewith &,~ppy-,of said opinion. 

i Opidibljl No.'.O&$3 af this,~aep~tmel;t,h~~as among 

o%her&h&g-s that a~ &5tistabl& is 'n~'t entitled- t&'&&e@ 

.._ j :~fee-~fo~ -read& a-wari&it. of~,drrest;tb;.a.:mot'orist:~~$6r S&84- 

" ;ihg.Wheh:tlie npt'ortst.\tias~ 3n~ %he 'custOdfr..:bfi.arid'~~der.'.arS8~st 

~rby a .Higtiay ~ih+natl.: sara opinioli also:~ol~S~th~& a' CPA- 

',stable ?0+a not be~.~ entltl~ed to. fee's' :fo* : serving a" subpYo8n.a 

~'L+js? he ~~tu@ll&ar&leg'~ly~ &$ecut~ed:,$h~., same'. : ;" ~~, 

., ,_ . ,. ~_. 

fin &nsGer 'tdyoti ?i;;'&quetioti Jrou &e r&peMully 

advised as,follows: .., ~ ~:. ~, ./../._. . 1 ,-, .., .' .L. : 

.: .%" it,. is a ~su8st$i Gf, .ya& a;' & &&he+. & & ,th8 

License aa Weights Inspector. arrested the truck driver ate 

the .time he StOpp8d~bi~ and gave him a ticket. If th,e.truck 

driver was arrestea.by.the License end lrfeights 'Itispector,j.t 

.was the duty of thaLicense aa Weights +s.p,ector,td carry 

'-the truck'driver b6fofe the nearest.'magistr&t& and U&&duty 

could not be performed by the giping~ of, a '(ticketU,wauthorized 

~by law:'.If'.h&did not arrest'the.truck~tiiv&ti.'.there.wCis no 

'~ aecessity orl-auifti ?e$son for his atteeted effort to require 

the truck driver to appear in court at a later dat,e,upon the 

purported authority of a "ticket." If the truck dH.vtir was 

arrested and released without authority of law, ha wZou&d perhaps occupy the same status as "an.escaped prisoner."~. abut regardless of whether or not the truckdriver was an "escaped 

prisoner", if the constable executed a valid warrant of. &rest 

legally issued-by the Justice of the Peace by arresting said 

truck driver at a later date he would be entitled to an arrest 

fee and his proper mileage. If he executed valid subpoenas 

for witnesses in the case lawfully issued by the Justice of the 

Peace he would be entitled to his fees and mileage for executing such process. 
Hon. Stanley Timmons, page 8 

In 

advised that 

answer Tao question No. 2,' you are rez&ctfUl& 

it is' the opinion of this department that: 

1. The constable would hot be entitled to any .fees 

unless h8 actually performed &$& services. He would hot 

be entitled to -any pay for any Alled. services performed. 

2. He would'not be entitled to fan errest.'fee because the facts .stated do not show a lawful arrest by theme 

constable; indeed, the facts indicate that if an arrest was 

made that it.was made by the License and Weights Inspector. 

If the constable made the arrest it would be an illegal arrest 

without warrant for which no~fees could be given to the constable. 

3. The question as to whether'or not the constable. 

vr0ula be entitled to a release fee would depend upon the facts 

in the case. If the Justice of the Peace render?d his jucigment as outlined by Artlcl~f~17, C.,C.P. 

Bent stated that the.d 

supra;~ and.$;ehis 

naant was 0 remain in t 0m0aq 

of the constable until the fin nd costs wepe Daiq 

defenclant,then'in the actual c&.taody of~the constable 

and if the 

and in 

the .legal custody of the ,constable by virtue of~the authority 

of said judgment paid his fine and costs, the constable then 

would be entitlei to a release fee for discharging 'the'akfenaant from the force and effect of a jUdgUI8nt restraining him. 

In answer to your third question, Wi tie of'&8 kpinion that paragraph 3 of our answer to your second question en- 

~swers your third question also. 

APPROVH) SOL 23, 1940 

/s/~ Gerald C.~ Mann 

ATTORNEP GENERAL OF TEXAS . 

APPROVED: OPINION COMMITTE 

BY: BWB, CHAIRMAN 

WJR AW:wb 

Yoixrs very truly 

ATTORNEY GEN- OFTEXAS 

By /s/ Wm. J. Fanning 

Wm:J. Fanning, Assistant 

ENCLOSURE