IQ&I 31, 1988 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Dear Mr. Driscoll: 

Opinion No. JR-880 

Re: Authority of a commissioners court to set fees 

for the execution of criminal 

warrants by a sheriff or 

constable (RQ-1060) 

You have requested an opinion from this office on the 

following question: 

May commissioners courts set fees for the 

execution of criminal warrants by the sheriff 

and constable? 

In 1981, the legislature enacted article 3926a, 

V.T.C.S. (since codified as section 118.131 of the Local 

Government Code), reading: 

(a) The commissioners, court of each 

county may set reasonable fees to be charged 

for services by the offices of sheriffs and 

constables. 

(b) A commissioners court may not set 

fees higher than is necessary to pay the 

expenses of providing 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 this Act are 

conflict with this Act." Id. 

stated, in section 3(b): 

bill that enacted article 

provision: "Fees provided 

other laws in conflict 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repealed to the extent they 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 of Texas, 1925, the 

p. 4296 
Honorable Mike Driscoll - Page 2 (Jh-880) 

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 this Act 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 in criminal cases were in conflict with the 

new law, they were repealed to the extent of the conflict, 

but onlv Insofar as a oarticular commissioners court 

prescribed different fees. They were to remain in effect 

in those counties where no different fees were 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) to be made for services performed by peace officers 

in misdemeanor cases. '~ In 1985, the legislature first 

amended article 53.01, m Acts 1985, 69th Leg., ch. 239, 

99, at 1183, and then, in a Wonsubstantive revision," 

relocated the substance of articles 53.01 and 53.04 (prior 

to amendment) to chapter 102 of the Code of Criminal 

Procedure as article 102.001 without expressly repealin 

the two articles from which the provisions were taken. 9 

m Acts 1985, 69th Leg., ch. 269 at 1300. Articles 53.01 

and 53.04 were eventually repealed in 1987 by the act that 

conformed article 102.001 to the previous 1985 amendments. 

@.g Acts 1987, 70th Leg., ch. 167, 54.01(b), at 2647. 

In 1987, as part of a nonsubstantive recodification, 

article 3926a was 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 to be 

read as a part 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. 

? 

-. 

p. 4297 
Honorable Mike Driscoll - Page 3 (-880) 

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. 

In order to answer your question, we need not determine the relationship between the general provisions of 

the 1981 law giving power to commissioners courts (former 

article 3926a, V.T.C.S., now section 118.131 of the Local 

Government Code) and the specific provisions (now found 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 so because we have concluded that 

the provisions now found in section 118.131 of the Local 

Government Code cannot constitutionally reach fees of 

sheriffs or constables assessed as costs in misdemeanor 

criminal cases. 

In Texas, costs in misdemeanor criminal cases are 

assessed as part 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 also Attorney General 

Opinion JM-443 (1986). a United States v. 

F.2d 1504 (11th Cir. 

Palmer, 809 

punishment to 

1987) (holding imposition of costs as 

be constitutional). A law 

different costs to be assessed in different 

allowing 

counties for 

the same penal offense would have the effect of allowing 

the penalty for state-defined crimes to vary from county 

to county and would violate both "due process@B and "equal 

protectionl' constitutional rights. U.S. Const., 5th 

Amend., 14th Amend.: Tex. Const., art. I 553, 19; Ex oarte 

!Z;son, sunrg. See Memet v. State 642 S.W.2d 518 (Tex. 

. - Houston [14th Dist.] 1982, bet. ref'd). S also 

W# 

132 S.W.Zd 408 (Tex. Crim. App.eT939); 

e, 8 S.W.2d 134 (Tex. Crim. App. 1928). 

If we 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 is nothing 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 of all Hservices by the offices of sheriffs and 

constables," and, although its application to fees charged 

in criminal cases was not discussed, it was so considered 

in Attorney General 

found in section 

Opinion JM-193 (1984). Nothing now 

118;131 of the Local Government Code 

would alter that view. The retention of articles 53.01 

p. 4298 
Honorable Mike Driscoll - Page 4 (JM-88.0) 

-. 

and 53.04 of the Code of Criminal Procedure (and the later 

incorporation of article 102.001 in Title 2 thereof) 

respecting such fees indicates no intention to limit the 

eventual scope of article 3926a or section 118.131 because 

such statutes, if "in conflict" with article 3926a 

section 118.131), were intended ~to have 

(01 

only where a commissioners 

continuing effect 

court failed to use its 

"article 3926a" powers. Such statutes were intended to be 

of no effect in counties fully employing such authority. 

A different argument about its intended scope could 

be made, perhaps, 

3926a (or its 

if the 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 in civil proceedings. 

in criminal proceedings as 

House Bill No. 

The Bill Analysis regarding 

1617 (the 1981 bill enacting former article 

3926a), prepared for the 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 

the merits 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 set higher than the actual cost 

of the services provided. (Emphasis added.) 

a Code Crim. Proc. art. 102.009 (formerly article 53.09) 

(criminal costs in class C misdemeanors set by commissioners court in populous counties). 

We are compelled to conclude that article 3926a (now 

section 118.131) was intended, j&er alia, to control the 

p. 4299 
, 

,- 

Honorable Mike Driscoll - Page 5 (X4-880) 

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 its entirety if its provisions are 

not so connected in subject matter, so interdependent, 

or otherwise so bound together that it can be presumed 

the legislature would have passed the law devoid of its 

unconstitutional aspect. $8.9 Countv School Trustees of 

Orana eCout v. 

School Distr ict No. 8, 153 S.W.2ds434 (Tex. 1941). In its 

original configuration, the 1981 bill enacting article 

3926a reouired commissioners courts to set sheriff's and 

constable's fees. As the bill 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 did not command that commissioners 

courts set all fees for sheriffs and constables, nor 

command that if any particular fees were set by the 

commissioners court, all others also must be set by that 

body. It follows that the act was passed with the 

understanding (though not the expectation, perhaps) that 

every county might decline to set such fees in criminal 

cases. 

In other words, the legislature exhibited an intent 

to enact former article 3926a even if the statute were 

never to be applied to the fees of sheriffs and constables 

in criminal cases. The 1985 retention of the recodified 

provisions now found in article 102.001 of the Code of 

Criminal Procedure showed a legislative willingness and 

expectation that those provisions would apply where former 

article 3926a (for whatever reason) was not utilized. We 

do not believe section 118.131, the successor statute, 

must be declared unconstitutional in its 

because its application to fees 

entirety merely 

in misdemeanor criminal 

cases would unconstitutionally violate *'due process" and 

"equal rights" provisions. 

matters is unaffected. 

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 

any potential conflict 

that would have otherwise existed between section 118.131 

p. 4300 
Honorable Mike Driscoll - Page 6 (JM-880) 

and statutes purporting to govern 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 of Criminal Procedure will control the fees to be 

charged in misdemeanor 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 of peace 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 act was to accomplish an 

unconstitutional objective, i.e., to specify~ different 

cost charges in misdemeanor criminal cases to be 

applicable for the same state-defined offense in different 

counties, depending on population, 

effect, and article 

it cannot be given 

102.001 remains applicable in all 

counties. 

Your request for an opinion, we realize, is not 

limited to misdemeanor situations. It asks about "fees 

for the execution of criminal warrants," 

fees in misdemeanor cases. 

not merely about 

Although the result is the 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, but were expressly repealed pro forma by the "nonsubstantive" 1985 act that 

previously found in articles 

rearranged the provisions 

of Criminal Procedure. 

53.01 and 53.04 of the Code 

See Acts 1985, 69th Deg., ch. 269, 

at 1300, 1307. 

In felony cases, fees and costs were formerly paid 

initially by the state pursuant to articles 1029 and 1030, 

but article 1018 of the code made their reuavment a charge 

against convicted defendants. (Articles 1029 and 1030 

imposed different fees for sheriffs and constables in 

felony cases, depending on (1) the number of votes cast in 

presidential elections in the county and ('2) 

tion of the county.) 

the populaHowever, such repayments have been 

I 

p. 4301 
Honorable Mike Driscoll - Page 7 (JM-880) 

:- 

unnecessary since 1949, when it became statutorily 

forbidden for the state or a county to pay a fee to an 

officer compensated on a salary basis. .&=Acts 1949, 

51st Leg., ch. 257, 51, at 474. 

Despite a design to operate in a way declared above 

to be unconstitutional for OOegual protection" and "due 

process'* reasons in misdemeanor cases, these "felony" fee 

statutes were never in nari materia 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 of articles 1029, 

1030, and 1018 by the 1985 %onsubstantive" revisory act 

is found following article 104.002 of the Code of Criminal 

Procedure. It explains 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" for compensatin 

officers, and by the enactment of former article 3912e, ? 

V.T.C.S., forbidding payment by the state of fees to local 

officers (both of which occurred prior to the enactment in 

1981 of former article 3926a): 

Article 3912e [section 31 expressly states 

that neither the state nor a county may pay 

a fee or commission to a district or county 

officer compensated on a salary basis. 

Article XVI, section 61 of the Texas 

Constitution requires . . . sheriffs and 

constables to be paid on a salary basis. 

Since all officers . . . are or habited from 

receivina fees from the state. Ehe nrovision 

of article 1018 reouj&.na that the fees 

paid bv the state are a harae aaai th 

defendant are meaninalessc (Smphasi?a~ded.~ 

We therefore advise that commissioners courts may not 

set fees for the execution of criminal warrants by the 

sheriff or constable in either misdemeanor or felony 

2. Article 3912e was repealed by Acts 1987, 70th 

Legislature, chapter 149, section 49(l) and recodified as 

part of the Local Government Code, principally at chapter 

154. The prohibition against paying fees to salaried 

officers is now codified at section 154.002 of the Local 

Government Code. 

p. 4302 
Honorable Mike Driscoll - Page 8 (JM-880) 

cases. To the extent that Attorney General Opinion JM-193 

(1984) suggests otherwise, it should not be 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 of Texas 

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 

p. 4303