IQ&I 31,1988

Honorable Mike Driscoll Harris County Attorney 1001 Preston, Suite 634 Houston, Texas 77002

DearMr. Driscoll: Opinion No. JR-880

Re: Authority ofa commissioners court to set fees for the execution of criminal warrants by a sheriff or constable (RQ-1060)

Youhave requested anopinion from this office on the following question:

May commissioners courts set fees for the execution ofcriminal warrants by the sheriff and constable?

In 1981, the legislature enacted article 3926a, V.T.C.S. (sincecodified as section 118.131 of the Local Government Code), reading:

(a)The commissioners, court of each county may set reasonable fees tobe charged for services by the offices of sheriffs and constables.
(b)A commissioners court may not set feeshigher than is necessary to pay the expenses ofproviding the services.

Acts 1981, 67th Leg., ch. 379, 51,at 1001.
Subsection 2(a) of the 3926a contained the following for sheriffs and constables in the provisions of thisAct are conflict with this Act." Id. stated, insection 3(b): bill that enacted article provision: "Fees provided other laws inconflict with repealed to the extent they at 52. But the bill also

Until a commissioners court prescribes different fees pursuant to Article 3926a, Revised Civil Statutes ofTexas, 1925, the

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fees charged by a sheriff or constable are those provided by the law in effect on August 31, 1981. Fees charged by a sheriff
or constable for services performed before the effective date of thisAct are governed by the law in effect at the time the services were performed.
Therefore, by the express terms of the bill enacting article 3926a, if laws governing the collection of sheriff's fees incriminal caseswere inconflict with the
new law, theywere repealed to the extent of the conflict, but onlv Insofar as a oarticular commissioners court prescribed different fees. Theywere to remain ineffect inthose counties where no different feeswere prescribed.

At the time article 3926a was enacted, articles 53.01, 53.02 and 53.04 of the Code of Criminal Procedure specified particular charges (applicable throughout the state) tobemade for services performed bypeace officers inmisdemeanor cases. '~ In 1985, the legislature first amended article 53.01, m Acts 1985, 69th Leg., ch. 239, 99, at 1183, and then, in aWonsubstantive revision," relocated the substance of articles 53.01 and 53.04 (prior toamendment) to chapter 102 of the Code of Criminal Procedure asarticle 102.001without expressly repealin the two articles fromwhich theprovisions were taken.9

m Acts 1985, 69thLeg., ch. 269 at 1300. Articles 53.01 and 53.04were eventually repealed in 1987by the act that conformed article 102.001 to theprevious 1985 amendments. @.g Acts 1987, 70th Leg., ch. 167, 54.01(b), at 2647.

In 1987, aspart of a nonsubstantive recodification, article 3926awas incorporated into the Local Government Code as section 118.131 thereof with no significant change in language. m **Acts** 1987, 70th Leg., ch. 149, at 1397, 1699, 2548. The same legislature had previously amended article 3926a. m Acts 1987, 70th Leg., ch. 143, at 640. Although the earlier changes were not expressly carried forward by the nonsubstantive revision that transferred the statute to the Local Government Code, they are tobe read asapart of the encoded provision. See Gov't Code

1. Article 53.02 of the Code of Criminal Procedure was repealed by the 69th Legislature. Acts 1985, 69th Leg., ch. 269, 55,at 1307. ?

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P §311.031(c) (repeal of article by code does not affect

amendment of the article by the same legislature). None of these changes affect our answer.

Inorder to answer your question, we need not determine the relationship between the general provisions of the 1981 lawgiving power to commissioners courts (former article 3926a,V.T.C.S., now section 118.131 of the Local Government Code) and the specific provisions (nowfound in article 102.001) of the Code of Criminal Procedure which
were in force at the time former article 3926a was enacted. We need not do sobecause wehave concluded that theprovisions now found insection 118.131 of the Local Government Code cannot constitutionally reach fees of sheriffs orconstables assessed as costs in misdemeanor criminal cases.

InTexas, costs in misdemeanor criminal cases are assessed aspart of the punishment. J& carte Carson, 159 S.W.2d 126 (Tex.Crim. App.~1942): Ex carte Mann, 46 S.W. 828 (Tex. Crim. App. 1898). See alsoAttorney General Opinion JM-443 (1986). a United States v. F.2d 1504 (11thCir. Palmer, 809 punishment to 1987) (holding imposition of costs as be constitutional). A law different costs tobe assessed indifferent allowing counties for the same penal offense would have the effect of allowing the penalty for state-defined crimes tovary from county to county andwould violate both "due process@Band "equal protectionl' constitutional rights. U.S. Const., 5th Amend., 14thAmend.: Tex. Const., art. I 553, 19;Ex oarte !Z;son, sunrg. SeeMemet v. State 642 S.W.2d 518 (Tex.

.-Houston [14th Dist.] 1982,bet. ref'd). S also
W# 132S.W.Zd 408 (Tex. Crim. App.eT939); e, 8S.W.2d 134 (Tex.Crim. App. 1928).

Ifwe could reasonably construe article 3926a and its later expression, section 118.131 of the Local Government Code, as not intended to embrace would do so in criminal matters, we order to avoid suggesting unconstitutionality, but there isnothing on the face of either of them.to indicate that the scope was intended to be anything less than all-embracing. Article 3926a was couched in language that would normally be considered inclusive ofall Hservices by the offices of sheriffs and constables," and, although itsapplication to fees charged incriminal caseswas not discussed, it was soconsidered inAttorney General found in section Opinion JM-193 (1984). Nothing now 118;131 of the Local Government Code would alter that view. The retention ofarticles 53.01

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and 53.04 of the Code ofCriminal Procedure (andthe later incorporation of article 102.001 in Title 2 thereof) respecting such fees indicates no intention to limit the eventual scope ofarticle 3926a or section 118.131 because such statutes, if "in conflict" with article 3926a section 118.131), were intended~tohave (01 only where a commissioners continuing effect court failed to use its "article 3926a" powers. Such statutes were intended tobe ofno effect incounties fully employing such authority.

Adifferent argument about its intended scope could bemade, perhaps, 3926a (orits ifthe legislative history of article

successor) suggested a legislative intent that the statute apply only to civil proceedings, but the available legislative history shows affirmatively that it
was &ended to embrace fees well as incivil proceedings. incriminal proceedings as

House BillNo. The BillAnalysis regarding

1617 (the1981bill enacting former article 3926a), prepared forthe House Committee on Sanctions of the 67th Legislature, states: Security and

BACKGROUND:

At present, the legislature sets the fees charged for the delivery of civil and

. .& papers by a sheriff or constable, and provides one cost for every county in the state. The legislature also decides themerits of such issues as service.) 'attempted

The commissioners court of each county does not have the discretion of setting m fees, even though the cost of serving papers varies from county to county.

This Bill would place the responsibility of setting fees charged by sheriffs and constables under the local control of the various commissioners courts. These fees would not be sethigher than the actual cost of the services provided. (Emphasis added.)

a Code Crim. Proc. art. 102.009 (formerly article 53.09) (criminal costs inclass Cmisdemeanors setby commissioners court inpopulous counties).

We are compelled to conclude that article 3926a (now section 118.131) was intended, j&er alia, to control the

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setting of fees proceedings, and attempts to do Carson, i5i!&sa. for sheriffs and constables in criminal that insofar as it or its successor so, it is unconstitutional. gx oarte

However, a statute found to be unconstitutional in part need not fall in itsentirety if its provisions are not so connected in subject matter, so interdependent,
orotherwise so bound together that it canbe presumed the legislature would have passed the lawdevoid of its unconstitutional aspect. $8.9Countv School Trustees of OranaeCout v. School 

### DistrictNo. 8, 153 S.W.2ds434 (Tex. 1941). In its original configuration, the 1981bill enacting article 3926a reouired commissioners courts to set sheriff's and constable's fees. As thebill analysis subcommittee amendment shows, however, a changed the phrase, "shall set reasonable fees," to read, Iv= set reasonable fees." Bill Analysis to H.B. No. 1617, prepared for House Committee on Security and Sanctions, 67th Leg. (1981). Thus, the legislature didnot command that commissioners courts set all fees for sheriffs and constables, nor command that if any particular feeswere set by the commissioners court, all others alsomust be set by that body. It follows that the act was passed with the understanding (thoughnot the expectation, perhaps) that every county might decline to set such fees in criminal
cases.

Inotherwords, the legislature exhibited an intent to enact former article 3926a even if the statute were never tobe applied to the feesof sheriffs and constables incriminal cases. The 1985 retention of the recodified provisions now found inarticle 102.001 of the Code of Criminal Procedure showed a legislative willingness and expectation that those provisions would applywhere former article 3926a (forwhatever reason)was notutilized. We donot believe section 118.131, the successor statute, must be declared unconstitutional in its because itsapplication to fees entirety merely inmisdemeanor criminal
caseswould unconstitutionally violate *'dueprocess" and "equal rights" provisions. matters isunaffected. Its application to civil

Inasmuch as section tionally read to 118.131 may not be constituallow commissioners courts to set fees for the execution of criminal warrants in
cases by the sheriff or constable, misdemeanor anypotential conflict thatwould have otherwise existed between section 118.131

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and statutes purporting togovern the fees of sheriffs and constables in such criminal cases is eliminated, The general repealer of Vonflicting statutes" found in the --. bill that enacted former article 3926a will not apply, therefore, and the provisions of article 102.001 of the Code ofCriminal Procedure will control the fees to be charged inmisdemeanor cases.

We are aware that article 102.001 was amended in 1987 to limit its applicability to counties with less than two million population, and that article 102.011 of the Code of Criminal Procedure was enacted to specify different costs for larger counties. $&= Acts 1987, 70th Deg., ch. 821, at 5695. For reasons already explained, however, charges for the services ofpeace officers assessed as costs in misdemeanor criminal prosecutions for statedefined offenses must be uniform throughout the state to escape condemnation on constitutional grounds. Inasmuch as the only purpose of the 1987 actwas to accomplish an unconstitutional objective, i.e., to specify~ different cost charges in misdemeanor criminal cases to be applicable forthe same state-defined offense indifferent counties, depending on population, effect, and article itcannot be given 102.001 remains applicable in all counties.

Your request for an opinion, we realize, is not limited tomisdemeanor situations. It asks about "fees for the execution of criminal warrants," fees inmisdemeanor cases. notmerely about

Although the result isthe same, the analysis with respect to sheriff's and constable's fees is somewhat different. in felony cases Former Code of Criminal Procedure articles 1018, 1029, and 1030 governed fees in felony cases, butwere expressly repealed pro forma by the "nonsubstantive" 1985 act that previously found inarticles rearranged the provisions

of Criminal Procedure. 53.01 and 53.04 of the Code SeeActs 1985, 69th Deg., ch. 269, at 1300, 1307.

In felony cases, fees and costswere formerly paid initially by the state pursuant to articles 1029 and 1030, but article 1018of the codemade their reuavment acharge against convicted defendants. (Articles 1029 and 1030 imposed different fees for sheriffs and constables in felony cases, depending on (1)the number ofvotes cast in presidential elections inthe county and ('2) tion of the county.) the populaHowever, such repayments have been I

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unnecessary since 1949, when it became statutorily

forbidden for the state or a county topay a fee to an officer compensated ona salary basis. .&=Acts 1949, 51st Leg., ch. 257, 51,at 474.
Despite adesign to operate inaway declared above tobe unconstitutional for OOegual protection" and "due process'*reasons inmisdemeanor cases, these "felony" fee statutes were never in narimateria with article 3926a or section 118.131. They ware rendered inoperative by a statute enacted before former article 3926a became law. The revisor's note discussing the repeal ofarticles 1029, 1030, and 1018by the 1985 %onsubstantive" revisory act is found following article 104.002 of the Code of Criminal Procedure. Itexplains how the former Code of Criminal Procedure statutes were rendered inapplicable by the adoption of article XVI, section 61, of the Texas Constitution abolishing the "fee system" forcompensatin officers, andby the enactment of former article 3912e,? V.T.C.S., forbidding payment by the state of fees to local officers (bothofwhich occurred prior to the enactment in 1981 of former article 3926a):

Article 3912e [section 31expressly states that neither the state nor acounty may pay a feeorcommission to adistrict or county officer compensated on a salary basis. Article XVI, section 61 of the Texas Constitution requires
. . . sheriffs and constables to bepaid ona salary basis. Since all officers
. . .areorhabited from receivina fees fromthe state. Ehenrovision ofarticle 1018 reouj&.na that the fees paid bv the state are a harae aaai th defendant aremeaninalessc (Smphasi?a~ded.~

We therefore advise that commissioners courts may not set fees for the execution ofcriminal warrants by the sheriff or constable in either misdemeanor or felony

2. Article 3912ewas repealed by Acts 1987, 70th Legislature, chapter 149, section 49(l) and recodified as part of the Local Government Code, principally atchapter 154. The prohibition against paying fees to salaried officers isnow codified at section 154.002 of the Local Government Code.

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cases. To the extent thatAttorney General Opinion JM-193 (1984) suggests otherwise, it should notbe followed.

SUMMARY
Commissioners courts may not set fees for the execution of criminal warrants by the sheriff or constable in either misdemeanor or felony cases. Such fees in misdemeanor.cases involving state criminal statutes must be uniform statewide, and such fees in felony cases are no longer collected.
Iv-2j~y&

JIM MATTOX Attorney General ofTexas

MARYEELLER First Assistant Attorney General

mu MCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Bruce Youngblood Assistant Attorney General

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