. r R-14

February 21,'1947

Hon. I. B. Hand OpinionNo. V-37 Cr,iminal

DistrIctAttorney Weatherford,,

Texas Re: Fees due a Constable for transporting a prisoner from the county inwhich detained to the county Inwhich charged, and related matters.
Dear Mr. Hand:

Your revised request for an opinion of thisDepartment reads substantlallgas follows:

"1

. W.W. Allen, who was indicted for forgery on three counts at the Spring Term, 1946, session of the Grand Jury of Parker County, Texas. He was not in custodyat the time and was not located until later in the sameyear. Priorto the Fall term of Court for 1946, this subjectwas located at Lubbock, Texas, where hewas arrested, and at that time the constable for Precinct l@o.1, Parker County, Texas, traveled to Lubbock and brought the prisoner back to Parker County,Texas,where he was tried and sentencedto the penitentiary. I would like your opinionas to how much the constable is entitled to for his fees on this trip. "2

. Onice Beauchampwas chargedby complaint filed in the Justice Court of PrecinctNo. 1, Parker County,Texas. In September, 1946, he was indictedby the Grand Jury For the Fall Term, 1946, forwife and childdesertion. Following hfs indictment,he was located and arrested in Oklahoma City, Oklahoma. The constable of Precinct No. 1, Parker County, Texas, traveled to Oklahoma City and returned, the prisoner to Weatherford, Texas, in Parker County, to answer to the indictment. He was released on bond and ispresently under the supervision of the court, making payments to his formerwife, but his legal status being that he 1smerely free on bond. Iwould like your opinionas to the amount of fees to which the constable is entitled, including the amount of mileage to which he is en-Hon. I. B. Hand, page 2 v-37

titled for going to Oklahoma City and returning with this prisoner.
"Iwould appreciateyour opinion on the above questions, if at all possible, Inasmuch as these questions arise frequently in our county and also In adjolnlng counties, as I have talkedwith the attorneys for adjoining counties,and they have been trying to solve the same question," Article 1030, V.A.C.C.P.,provides inpart as follows:
"In each countywhere there have been cast at the precedingpresidential election less than 3000 votes, the sheriff or constable shall receive the following feeswhen the charge isa felony: "1

. For executing eachwarrant of arrest or capias, or for making arrestwithout warrant, when authorizedby law, the sum of onedollar; and five cents for eachmile actually and necessarfly traveled in going to place of arrest, and for conveying the prisoner or prisoners to jail,mileage, as provided for in subdivision 4 shallbe allowed: provided, that in counties that have a population of less than forty thousand inhabitants,as shownby the preceding Federal census, the following fees shall apply: For executing eachwarrant of arrest or capias, or for making arrest without warrant, when authorized by law, three dollars and fifteen cents for each mile actually and necessarily traveled in going to place of arrest, and for conveying prisoners to jail,mileage as provided for in subdivision 4 shall be allowed:

. . S
. . . . .

“4

. For removing a prisoner, for each mile going and coming, Includingguards and all other expenses,when travelingby railroad, ten cents; when traveling otherwise than by railroad, fifteen cents; provided, thatwhen more than one prisoner is removed at the same time, in addition to the foregoing,he shall only be allowed ten cents a mile for each additionalprisoner."
Pursuant to the departmentalruling of the Comptroller's office,which has been followedby thisDepartment, Article 1030 applies to all counties having a populatfon of less than 40,000Hon. I. B. Hand, page 3 v-37

inhabitantsaccording to the precedingFederal Censusregardless of the number of votes cast at the precedingpresidential election. Parker County has a population of less than 40,000 inhabitants;therefore,Article 1030 is applicable to that county and its constablesas it relates to fees in felony cases.

It is assumed that the constables of your county are paid on the fee basis and, therefore, inyour first factual situation, it is the opinion of thisDepartment that the constablereferred towould be entitled to 15$ per mile for going to Lubbock, Texas, the place of arrest, and a total of 304 per mile for returning saidprisoner to jail in Parker County; 15$ for the officerand 15$ for the prisoner for eachmile actually and necessarily traveledwhen travelingby private conveyance. (Art. 1030, C.C.P.,Binford vs. Robinson, 244 S.W, 807). If travelingby rail or bus, the constablewould be entitled to lOq! per mile for eachmile going and coming and 1.04 per mile for returning said prisoner.

In your second factual situation, the problem ismore complex. The offense ofwife and child desertion is a felony, the punishment forwhich is confinement in the penitentiary for not more than two years, or confinement in the count jail for not more than sixmonths, or a fine of not less than J25.00 nor more than $500.00, or punishment by both such fine and imprisonment in jail. (Art. 602, V.A.P.C,) Article 1019, C.C,P.,provides as follows: "If the defendant is indictedfor a felony and upon conviction his punishment isby fine or confinement in the county jail, or by both such fine and confinement in the county jail or convicted of a misdemeanor,no cost shall be paid by the State to any officer, All costs In such cases shouldbe taxed, assessed and collectedas inmisdemeanor cases." Article 1027,V.A.C.C.P., provides inpart as follows:
"Inall caseswhere a defendant is indicted for a felonybut under the indictmenthe may be convicted of a misdemeanoror a felony, and the punishmentwhich may be assessed is a fine, jail sentence or both such fine and imprisonment in jail, the State shall pay no fees to any officer, exceptwhere the defendant is indicted for the offense of murder, until the case has been finally disposed of in the trial court.... ..*...'Hon. I. B. Hand, page 4 v-37

Inasmuch as your case is one inwhich the defendant could receive a fine or jail sentence,no fees attach until the finaldisposition of the case in the trial court. If the defendant is subsequentlyconvicted and his punishment assessed at a fine or imprisonment in the county jail,all costs shall be taxed, assessed and collectedas inmisdemeanor cases.

The fees allowed peace officers inmisdemeanor cases are set forth inArticle 1065, V.A.C.C.P. Section 11 thereof provides as follows:

"For each mile he may be compelled to travel in executing criminalprocess and summoning or attachingwitness, seven and onehalf cents. For traveling in the service of process not otherwiseprovided for, the sum of seven and one-half cents for each mile going and returning. If two or more persons are mentioned in the samewrit, or two or morewrits in the same case, he shall charge only for the distance actually and necessarily traveled in the same." If the defendant, however, is subsequentlyconvicted and his punishment assessed at confinement in the State penltentiary, the provisions of Article 1030, supra,would be applicable and the same fees allowed inyour first factual sltuation may be taxed. Needless to say, if the indictment is subsequentlydismissed, the fees may be, after dismissal, taxed under the provisions ofArticle 1030, inasmuchas the defendant isunder indictmentfor a felony.

It is assumed that the constablewas not traveling upon a requlsltion of the Governor. In this connection, it should be noted that in the absence of a statuteallowing a fee for mileage for those miles traveled in Oklahoma, the constable would not be entitled to mileage for those miles traveled outside the State of Texas. The Officers'Salary Fund can be used only to pay salaries and other expenses authorizedby law and in the manner prescribedby statute. Article 1030a,V.A.C.C.P,, was held unconstitutionalby thisDepartment in an opinion numbered 0-4088 dated November 15, 1941, and, therefore, the controlling statute isArticle 1006,V.A.C.C.P., (Brightmen, Sheriff vs. Sheppard, Comptroller, 59 S.W. 2, 112; Opinion 0-1016) which specifically states:

"Section 1. The officer or person so commissioned shall receive as compensationthe actual and necessary traveling expensesupon requisition of the Governor to be allowed by,

Hon. I. B. Hand, page 5 v-37

suchGovernor and to be paid out of the State Treasury upon a certificate of the Governor reciting the servicesrendered and the allowance therefor.
"Sec. 2. The CommissionersCourt of the countywhere an offense is committedmay in its discretion, on the request of the Sheriff and the recommendation of theDistrict Attorney, pay the actual and necessary traveling expenses of the officer or person so commissioned out of any fund or funds not otherwisepledged."
A prerequisite for compensation for traveling expenses beyond the State line is that the officerbe commissioned~bg the Governor to return a fugitive from justice,and if 80, he may be paid by the Commissioners'Court in itsdiscretion. Therefore, It Is the opinion of thisDepartment that the constablewould not be entitled to mileage outside the State of Texas if he was not commissionedby the Governor before travelm3. In an opinion of thisDepartment, No. O-7471,dated December 6, 1946, the subjectmatter presented in your second factual situationwas fully discussed, a copy ofwhich is herewith enclosed for your information. The pertinent part of this opinion is as follows:

"Inall caseswhere a defendant is indicted for a felony, other than murder, but under the Indictmenthe may be convicted of a misdemeanor or a felony, and the punishmentwhich may be assessed is a fine, jail sentence or both such fine and imprisonmentin jail, the Sta.te may not pay any fee to the magistrate or any peace officer for their servicesrendered in the examining trial of any such cases until the same have been finallydisposed of in the trial court. If the defendant in such a case is finally convicted of a misdemeanor, or convicted of a felony and the punishment assessed is a fine, jail sentence or both such fine and imprisonmentin jail, such officers cannot collect their examining trial fees from the State, but such fees are taxed, assessed and collectedas in misdemeanor cases. Art. 1019, C.C.P., as amended. "i * * * x "* * * * * In otherwords, no fee can be paidRon. I. B. Hand, page 6 v-37

by the State to any of the officersnamed in your requestwhich accrues after indictment in a reducible C&Se, except a murder case,while 8UCh Case is pending in the district court or before final disposition thereof in Said court. Furthermore, should the defendant be finally convicted of a misdemeanor or convicted of a felony and the punishmentassessed is a fine or confinement in the county jail, or by both 8UCh fine and confinement in the county jail, no costswhatever may be paid by the State to the officersnamed."
In compliancewith Section 17, Article 3912e,V.A.C.S., the fee above referred to InArticle 1030 is payable from the Officers'.SalaryFund of the county, if the constable is on a fee basis, and 8UCh 18 assumed.
SUMMARY 1. The fees due and owing a constable of Parker County for transportinga prisoner from the county inwhich detained to the county in which charged are governed by Article 1030, V.A.C.C.P., in felony cases, and Art. 1065, V.A. C.C.P., Inmisdemeanor Cases. 2. If a defendant indicted for a felony, upon conviction, 18assessed a fine or confinement in the county jail, or both such fine and confinement,no COStS shallbe paid by a county,WhOse county officer8 are compensated on a Salarybasis, to a constablewho is compensated on a fee basis, but the same Shall be taxed as in misdemeanor cases. V.A.C.C.P.) (Art. 1019,

3. Pursuant to Article 1006,V,A.C.C.P., a constable, to be entitled to fees for mileage traveled outside the State of Texas in a felony Case, must be COIIItniSSiOned by the Governor; inwhich event the Commissioners'Court my, in itsdiSCretiOn, pay the same.Hon. I. B. Hand, page 7 v-37

Yours very truly,
ATTORNEY GENERAL OF TEXAS By s/BurnellWaldrkp Burnell Waldrep ASSiStaIlt BW:djnr:e%:wc Enclosure

APPROVED FEB. 21, 1947 s/PriceDaniel ATTORNEY GENERAL Approved Opinion Committee: By B.W.B., Chairman

.