. 

r 

R-14 

February 21,'1947 

Hon. I. B. Hand Opinion No. V-37 

Cr,iminal DistrIctAttorney 

Weatherford,, Texas Re: Fees due a Constable for transporting a prisoner from the 

county in which detained to 

the county In which charged, 

and related matters. 

Dear Mr. Hand: 

Your revised request for an opinion of this Department 

reads substantlallg as 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 custody at the time and was not located 

until later in the same year. Priorto the Fall 

term of Court for 1946, this subject was located 

at Lubbock, Texas, where he was 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 sentenced to the penitentiary. I 

would like your opinion as to how much the constable 

is entitled to for his fees on this trip. 

"2 . Onice Beauchamp was charged by complaint 

filed in the Justice Court of Precinct No. 1, 

Parker County, Texas. In September, 1946, he was 

indicted by the Grand Jury For the Fall Term, 

1946, for wife and child desertion. 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 

is presently under the supervision of the court, 

making payments to his former wife, but his 

legal status being that he 1s merely free on 

bond. I would like your opinion as 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. 

"I would appreciate your 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 talked with the attorneys for adjoining 

counties, and they have been trying to solve 

the same question," 

Article 1030, V.A.C.C.P., provides in part as follows: 

"In each county where there have been cast 

at the preceding presidential election less 

than 3000 votes, the sheriff or constable 

shall receive the following fees when the 

charge is a felony: 

"1 . For executing each warrant of arrest 

or capias, or for making arrest without warrant, 

when authorized by law, the sum of one dollar; 

and five cents for each mile 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 

shall be allowed: provided, that in counties 

that have a population of less than forty thousand inhabitants, as shown by the preceding 

Federal census, the following fees shall apply: 

For executing each warrant 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, Including guards and all other 

expenses, when traveling by railroad, ten cents; 

when traveling otherwise than by railroad, fifteen cents; provided, that when 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 additional prisoner." 

Pursuant to the departmental ruling of the Comptroller's 

office, which has been followed by this Department, Article 1030 

applies to all counties having a populatfon of less than 40,000 
Hon. I. B. Hand, page 3 v-37 

inhabitants according to the preceding Federal Census regardless of the number of votes cast at the preceding presidential 

election. Parker County has a population of less than 40,000 

inhabitants; therefore, Article 1030 is applicable to that 

county and its constables as it relates to fees in felony cases. 

It is assumed that the constables of your county are 

paid on the fee basis and, therefore, in your first factual 

situation, it is the opinion of this Department that the constable referred to would be entitled to 15$ per mile for going 

to Lubbock, Texas, the place of arrest, and a total of 304 per 

mile for returning said prisoner to jail in Parker County; 15$ 

for the officer and 15$ for the prisoner for each mile actually 

and necessarily traveled when traveling by private conveyance. 

(Art. 1030, C.C.P., Binford vs. Robinson, 244 S.W, 807). If 

traveling by rail or bus, the constable would be entitled to 

lOq! per mile for each mile going and coming and 1.04 per mile 

for returning said prisoner. 

In your second factual situation, the problem is more 

complex. The offense of wife and child desertion is a felony, 

the punishment for which is confinement in the penitentiary for 

not more than two years, or confinement in the count jail for 

not more than six months, or a fine of not less than J 25.00 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 indicted for a felony 

and upon conviction his punishment is by 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 should be taxed, assessed and 

collected as in misdemeanor cases." 

Article 1027, V.A.C.C.P., provides in part as follows: 

"In all cases where a defendant is indicted 

for a felony but under the indictment he may be 

convicted of a misdemeanor or a felony, and the 

punishment which 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, 

except where 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 in which the defendant 

could receive a fine or jail sentence, no fees attach until 

the final disposition of the case in the trial court. If the 

defendant is subsequently convicted and his punishment assessed 

at a fine or imprisonment in the county jail, all costs shall 

be taxed, assessed and collected as in misdemeanor cases. 

The fees allowed peace officers in misdemeanor cases 

are set forth in Article 1065, V.A.C.C.P. Section 11 thereof 

provides as follows: 

"For each mile he may be compelled to 

travel in executing criminal process and summoning or attaching witness, seven and onehalf cents. For traveling in the service of 

process not otherwise provided for, the sum of 

seven and one-half cents for each mile going 

and returning. If two or more persons are mentioned in the same writ, or two or more writs 

in the same case, he shall charge only for the 

distance actually and necessarily traveled in 

the same." 

If the defendant, however, is subsequently convicted 

and his punishment assessed at confinement in the State penltentiary, the provisions of Article 1030, supra, would be applicable and the same fees allowed in your first factual sltuation may be taxed. Needless to say, if the indictment is 

subsequently dismissed, the fees may be, after dismissal, taxed 

under the provisions of Article 1030, inasmuch as the defendant is under indictment for a felony. 

It is assumed that the constable was not traveling upon 

a requlsltion of the Governor. In this connection, it should 

be noted that in the absence of a statute allowing 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 authorized by law and 

in the manner prescribed by statute. Article 1030a, V.A.C.C.P,, 

was held unconstitutional by this Department in an opinion 

numbered 0-4088 dated November 15, 1941, and, therefore, the 

controlling statute is Article 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 compensation the 

actual and necessary traveling expenses upon 

requisition of the Governor to be allowed by 
, 

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

such Governor and to be paid out of the State 

Treasury upon a certificate of the Governor 

reciting the services rendered and the allowance therefor. 

"Sec. 2. The Commissioners Court of the 

county where an offense is committed may in its 

discretion, on the request of the Sheriff and 

the recommendation of the District Attorney, 

pay the actual and necessary traveling expenses 

of the officer or person so commissioned out of 

any fund or funds not otherwise pledged." 

A prerequisite for compensation for traveling expenses 

beyond the State line is that the officer be commissioned~bg 

the Governor to return a fugitive from justice, and if 80, he 

may be paid by the Commissioners' Court in its discretion. 

Therefore, It Is the opinion of this Department that the constable would not be entitled to mileage outside the State of 

Texas if he was not commissioned by the Governor before travelm3. 

In an opinion of this Department, No. O-7471, dated 

December 6, 1946, the subject matter presented in your second 

factual situation was fully discussed, a copy of which is herewith enclosed for your information. The pertinent part of this 

opinion is as follows: 

"In all cases where a defendant is indicted 

for a felony, other than murder, but under the 

Indictment he may be convicted of a misdemeanor 

or a felony, and the punishment which may be 

assessed is a fine, jail sentence or both such 

fine and imprisonment in jail, the Sta.te may not 

pay any fee to the magistrate or any peace officer for their services rendered in the examining 

trial of any such cases until the same have been 

finally disposed 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 imprisonment in jail, such 

officers cannot collect their examining trial 

fees from the State, but such fees are taxed, assessed and collected as in misdemeanor cases. 

Art. 1019, C.C.P., as amended. 

"i * * * x 

"* * * * * In other words, no fee can be paid 
Ron. I. B. Hand, page 6 v-37 

by the State to any of the officers named in 

your request which 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 punishment assessed is a fine 

or confinement in the county jail, or by both 

8UCh fine and confinement in the county jail, 

no costs whatever may be paid by the State to 

the officers named." 

In compliance with Section 17, Article 3912e, V.A.C.S., 

the fee above referred to In Article 1030 is payable from the 

Officers'.Salary Fund 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 transporting a prisoner from 

the county in which 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., In misdemeanor Cases. 

2. If a defendant indicted for a felony, 

upon conviction, 18 assessed a fine or confinement in the county jail, or both such fine 

and confinement, no COStS shall be paid by a 

county,WhOse county officer8 are compensated 

on a Salary basis, to a constable who 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; in which event the Commissioners' Court 

my, in its diSCretiOn, pay the same. 
Hon. I. B. Hand, page 7 v-37 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

By s/Burnell Waldrkp 

Burnell Waldrep 

ASSiStaIlt 

BW:djnr:e%:wc 

Enclosure 

APPROVED FEB. 21, 1947 

s/Price Daniel 

ATTORNEY GENERAL 

Approved Opinion Committee: By B.W.B., Chairman 

.