,.~.

Hon. Stanley Timmons opinion No. O-2104 County Attorney Fte: Hsrrison.County Overloading - Constables - Fees - Arrests - Release; Marshall, Texas Deer Sir: Wehave received end carefully considered your request ?,or ti opinion upon the following questions:

"Question No. 1: Whena 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, andweigh a truck under the.provislons of &tide 827a,-Section 5of the..Penal Code which.reads as'.+ollgws: ~ U'Nocommercial motor vehicle; truck trailer or semi-trailer shall be operate 8 tractor, on ttie public &Lghwayoutsiae.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 upon ii .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 .amagistrate inst&nter, but in lieu of.that, gives to the defendant in the case ~.aticket in which the defendant promises to appear before some particular court and thereafter, and prior toHon. Stanley Timmons, Page 2 (C-2104)

the date onwhich the defendant agrees. to appear, the constable has prepared a complaint, warrant, and subpoena, serving the warrant on the defendant’

. whenhe makesthe 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..andwa#Lng with, and assisting an employee or’ inspector of the license andweight division of the Department of Public Safety of the state of Texas, ana upon apprehension by such inspector-of the lLcen%e andwefght division of the Department of Public Safety and the Constable, a driver of a truck is charged 

### for the violation oftArticle 827a of the Penti code wherein the person charged ,is given a notice t.9appear, 

## *a does, as to same, makehis appearance at a subsequent date 

### as agreed upon at the %ims of his apprehension and makestiplea’ qf guilty before the court;’ the Inspector for the license. andweight dlvision of the Bepartment of Public Safety being absent, lri th8 aonstable whowaspwith, and assisting the in- ,$pector, entitled to colle&Lon of the fine and cost +nda release fee 

### when acceptlag such fine and cost and releasing %he defendant from the terms of the judgmept assessed? *Question ;Nor3: If ~aconstable is accompanying, wcWd.ngwith and assisting an inspector of the license andweight 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 makeshis plea and.Is assessea~ a moneyjudgment end the fine and cost Is then end there ,paId to the constable whoreceipts 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 

## Codeof Criminal Procedure, reads as fo lows: 3Hon. 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-;betaxed against the defendazit oneeonvictlon:

: ‘11. For .executing each,war&d of a&&d or caplas; or.~makingarrest ~w’ithoutwarrant; ~two:dollars. :

“2

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

F~orserving. any,.writ n& .otherwise. pro-: viaea for, one

## a0um.

“ 4

. For takikg &a approving each bona, &a returting .the sameto the court :house, whennecessary,. one

## a0im emfifty cents. ~, ‘.:. la. 115..

..’For, each~&ommitmentnorr.elkase, q.e. dol-,

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

## doliar.

‘76. For attending .aprisoner 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 awit&& attached .b$&Lmto 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 .apr&soner afi‘er ~convictloh to the county .jail, for~.~eachmile 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. ~Forconveying a prisoner arrested Cma warrant or capias,: issued from another county to %he court or jail, oftthe counQ fmmwhich 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 maybe 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 sumof seven and one-half cents for each miie going end returning. If two or more persons are mentioned in the samewrit or two or morewrits in the samecase, 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 manyother 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 anywheel 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: 'IAperson is said to be arrested whenhe 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 makingthe arrests shal$ immediately take the 'persod &rrGst&d'b&fbre the magist?'ate whomayhave 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&yofficer, 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 ",Anyofficer,,jailer, or guard whobas,the 

## Oust0ay,O~

~a ~p&+&on.adcusedor'~d6nVicted. of a misderqeanor whonegligently 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$minalaction'be?ori,.a ',justs&e oftthe .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 andcosts 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 maydischarge the Defendant upon his showing the samecause, by application to such justice; andwhen 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, nameana 1nak8of the car, the~name and address of the operator or driver thereof andrdtify 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; Anyperson wilfully violating such promise, regardless of the disposition of the charge uponwhich 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 noHon. 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 -~-bnlywhe+ '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 makearrests without warrants for violatldns of the.&oad limi.t,l.aw..i *id opinion,pont+ins~,a~full discussion 

## :’of 

## ~+iaz~@?tt8r._q

y8enc$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 ~rbya.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 ~bylaw:'.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&dperhaps occupy the samestatus as "an.escaped prisoner."~. abutregardless 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,page8

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. Hewould hot be entitled to -anypay for anyAlled. services performed.

2. Hewould'not be entitled to fanerrest.'fee because the facts .stated do not showa lawful arrest by theme constable; indeed, the facts indicate that if an arrest was madethat it.was madeby the License and Weights Inspector. If the constable madethe 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. 

## vr0ulabe entitled to a release fee 

## woulddepend 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 0remain in t 

## 0m0aq of the constable until the fin nd costs wepe Daiq defenclant,then'in the actual c&.taodyof~the constable 

## andif 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 

## wouldbe 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- ~swersyour third question also. APPROVH)

SOL23, 1940 /s/~ Gerald C.~Mann ATTORNEP

GENERAL

OFTEXAS

. APPROVED:

OPINIONCOMMITTE BY: BWB,CHAIRMAN 

### WJRAW:wb Yoixrs very truly ATTORNEY

GEN- OFTEXAS By/s/ Wm. J. Fanning Wm:J. Fanning, Assistant

ENCLOSURE