Juwary l2, 1939



## woaw.?.so%tos county .4ttonaey

**‘ >r~ge,**  **Texas** Dear Sir: ~pia&nl No. 3-22 lb:, Fees **of** County *xttoraeys. Justicea af tlm Peace, Shoriffa, in misdom*Mor Csse8. Tour **mpst** for sm**opi+a OL** **tb abow.**  dated Ceeernkr 20, 1938.addressed to Attorney Genersl rjilliam lv.cCraa has beea nf8rr.d **to** this Caputrnbnt **for attention**  **and reply.**  **ha** qnoto your Iettsr **as** follows:

“Pla8ae giw me your opinion in the followtag qwatioas:

‘(1) In miadonu~or cases w&r+ aJurtice of thmPeace issws l warrant of **armat** and aub**poena for**  **witaomes in**  **a err**  **aad phcca**  them **in the**  **haads of**  **th sheriff**  **or** coastable for service **and before**  **the** sheriff or constable meets ths accused or the witnrsaes, is ths officer tntitled to **charge for**  fees of **arrest** aad summoning the witnears 

### ornot?

‘(2) lf a peison convicted of l mfsdemeaaor aad theJuatico **of** the Aace issws a eommitiat to the sheriff and the sheriff does not place the convicted parson injaU, but lata him go on a promise to day the fiue and coats inthe futura and doer +y it later, is the **sheriff** entitled **to** eoilect from the convicted 

### personthe fee for commitment and releaw7

‘(3) .Yheaths **sheriff** mleraea a coavietod person as nuntioncd in the abow paragraph (2) and later collectes **from the**  convicted **person** enough mosey to eowr Wfizm, trial **fee** and attorneyHon. :i;. P. Sexton,January 12, !939, page 2. fee aud perhaps part of the eheriff’r fee, sad then refuses to turn in tbe sum of fine, trial fee and attorney’s fee until be caa collect the whole of alI fine md costs, .hes he the IegsI right.to withhold such fine. **trial** fee snd sttorwy fee **until** M cae collect his fee. Is l sheriff entttled to a fee for **cwnmit** ment sd nlerse **whether** orn ot the convicted person pays **fhu?**

‘I will appreciate your opiaioa on the abow qwstioas as the sheriff andjustices of the Peace of this county do not seem to agree **regarding then**  uutters,~

**.** h answer te yeur first 

### inquiry. the rtetutes prescribe certain fees to be prod county 

### officers, **coaditioaed** upon the performMu of certa~ acts.

**“ Foe**  **as a**  **term** 

### l **xpnssiw of**  reaauwratioa **for public**  officials meum the remuneratian or compensation or wages allowed by law ia return for their servlees.’ (Vcltmsa v. State, 217 3.3. 378.) To entitle aa efficer to a fee in any case, he must per**form some**  **act** to e8rn the same:

-To entitle sa officer to receiw fees or canmissioas* * l he must have performed the services for which compensation hro been specified.. (34 Tcx. Jur.. Sec. 113,p. 522). The qwstioa nsoives itself down to one point. la there such a performance of service rendered by the sheriff as to entitle him to a fee I

Arrest on a criminai charge hw been defined as “the appnhendixkg or detaining of tha person in order to be **forthcoming to**  snstwr an sIleged 

### orsuspected crime.g (15 &iv. JL?).

Article 239 of the 1925Texas Cede of Crimina.i i?rocedure reeds as follows:

“A person is said **to** be arrested when be has **actually been**  **placed** under restmint or t&en into custody by the officer or person executing ths warrant of errest.~ Texas Jurisprudence, Volume 34, paragraph Li3. sad cases there cited, states that: ‘To entitle an officer to receiw feer 

### or commissions, the receipt **thereof must**  haw bsen provided for and the smount fixed by law; snd he must haw performed the services for which compensation has bean specified..HO& **:V. .?.**  **Sexton,** Jaauary l2, 1939.page 3

It i8 **trw** that our statutes provide that in certain cases mm

officiol may be entitled to a fee, own though not **perfonniag any**  **act** 

### or **service in**  **maid eeae.**  This is true of l h unty Atto rasy,who is **entitled** to **a fee**  **on a** 

### plea**of** guilty intheJustice Court without personally king present, but our statutes 

### proscribing fees for public officials are strictly **construed** in fever of tbe state, ceenty or muaici~ality, **md wless**  **a fee**  **is mpecificaily**  **provided for**  **neae eaa**  **be al**  lewd. and the officer cannot be heard to complain if the Legislature bad been **more** liberai **toward** other officials than **toward** him in the matter of compensation for his office, mm he is presumed to know this at the time he sought the office.

1would like to call your attention further to .~.rticle 1Ollof the 1925 Code of Crirniaei lrocedure, which reads as **fouow ‘** **r** -No itemo f costs shall b trrPd for a

purported service which was not **petionned** or **for** s service **for** which no feo is expressly **provided by~law.m**  You are advised that it is the oaiaioa af **this Gapart**  meat that fear **allowd** to officers by **statutes** arc allowed as cmnpenaation **for menicer**  

### l **ctumliy rendered**  **and unlearn** **the** services ai sctuall7 **rendered. the**  **officer** is entitled to no fee. Therefore, where an sccueed voluntarily appears and 

### enters

his plea without having h&dthe warrant of **arrest served**  on him by the sheriff, the sheriff would not be entitled to a fee for serving the ~wsrrsnt. The same would be tnm as to serving a subpoena; the sheriff would notbe entitled to a fee unless be had actuaily merwd the ssme.

In reference to your second inquiry. w are of the opiaion that our mamwr to the firsr question amswrs the second, for the reason that unlearnthe sheriff actually eammitted and **released** the prisoaer, he **would** not be entitled to AZIY fee. In answer to your third **inquiry.** we wish to refer you to Article 317of the ?enal Code of Texam**of 1325,**  which reeds as **fol** lowa: **-Aay** offiar. **jailer.** or **guard** having the

legal **custody of**  **a person**  **accused** or convicted of **a** misdemeanor who wilfully permits such person to escape or to be rescued slull bs fined BOt exceeding one thousand dollars.’Wan. Yi. P. Sexton.January 12.1939, page 4 The Court has maidInthe cameofLucky vs. Ztate, **14**Tee. 400: *A sheriff **who** permits **s** 

### person**convicted**

of **misdememor** to go **at large,**  **when** such **primo=r** has ken committed tojail until the **fixta**aad **costs** are **paid** is guFltyof permitting such prisolur to

.’ eaeape.. **Artiels 322**  **of tha**  **Fenal Code**  **also raadm:** 

**‘ Amy**  officer, jailer, or guard **who** ham**the** legsl custody of a person accumed or convicted **of** a.**misdemesaer** whonegligently perrr:itmmuch **person** to eseaps **or** to be rcscwd shti be fiaed net **orceediang film**  hundred **dollars. ’** 
**We also**  wnt **to call**  your stteation to **.+rticla 324**  of the sauu Code which 

### provides:

-Any s&eriff or other officer who wilfully refuses **or** fails Cram wglect to axeate 3ay lawful process in himhaads requiring t&e arrest **of** I)person

l ceumedof amisdemeanor whereby tbe l ceuud escapes, or who wilfuily refuses to receiw into sjail under himcharge or to receiw in him**custody mny** 

### person**lawfully com**  mitted **to** his cumtodyon such accusation, **shall** be fined **not** exceeding fin hundred doLlarm." A peace officer **has ao**  **authority to**  allow a prisoner time within which to **pay** a fiae **amsesmed against**  him by the Court. Article 787 of tbe 1925Code of Criminal Sroeedura of Texas provfdea:

reds: **“ .Ahen**  **a**judgrr-nt **&as ken**  **rendered against** 

a defendant **for a**  **pecuniary** fk#. if he impremeat, he shall be irnprimonediajail uatfl discharged as provided by law. **A** certified copy of suchjudgment shall be sufficient to authori= muchimprisoaxnent.’ Article **788** of **the muna**  **Code of**  Crivniwi **Proudun,**

“lvhen a peeuatary fiae hambeen adjudged againat **a** defendant aot present. 0 capiammball **forthwith** be issued for himarrest. The sheriff shall execute tbe same by placieg the defendant injail.’Hon. iv. **P.** .%mt&, Jamuy 12, 1939,paae 5 article 789 of tha Code of Criminal ?rocedure reads ***. folloaa:** 
Q%ere l wh cap ka

**iaa~a,** it shall atats th8 **r*ndition** 84 **amaunt** of the judgment and tha 

## amount

unpaid

thereon.

and eo¶nmrPd

the sheriff to tab tha defendant and p&a him in j&I until the 

## amount due upateuch Judgment and the furtlmr Costa of collecting the aame are paid, or until the defendant is otherwise legally diachargad: If an officer fatla to comply with the order of **tha** court rsnteacin~ a prisoner to pay a **fin8** or go tojail, and permitting the priaonar to 90 at large. thanthe officer would be guiity of permittinq the priaaner to laupa or refusing to receiw raid priaornr aa set out ia tbaArticle8 of the Penal Code above.

It has lonp hen held by tbia Cepartment that whara **only.** part of **a** fina and **coata is**  **eollactad,** that **tha money**  collected should firat go to the paying of coats and the balance, if any. to the amount of the fine, and where thera ia not enoqh collected to pay all of the coats, that the money collected should ba proratad between the dffcara having a fee according to the amount of their **fee** and one officer baa no priority owr another:

Article 949of the 1925Coda of Criminal Procedure providea:

‘ldoney collected by en officer upon reeqnizances,

bail bonda and **other** oblig&iona raeovered upon ia tha name of tha State **under** any provision **3f** this Code, and all fines, forfeitures, judgment8 and **jury** feea collected under any provision jf this **Code, shall**  forthwith **ba** paid **ova?** by **tha officers**  collecting the **mama**to the County Treasurer of the proper county, after first **deducting therefrom**  **the** leg& fees and commiaaiona **for** collecting the same.” In view ofthe above atatiates,it is our **qdnion** that the money collected by the sheriff shall forth withbe paid owr to t.kaproper partiaa. Namely, paymant of tha coat to the proper officiala **antitlad thareto.**  **and tha**  belance to the County Trerrunr, **end in**  **the event**  **there ia**  not enough to pay all tha fine and coats, then the money shall be prorated aa set out above.

In **answer** tothe **last** sentenca in **your** third paragraph, yoo are adviaed thatthis Ceparflrent has held a conferenca opinion, datedJanuary 11,1939,**written** by Aaaiatant Atiorrjr General denjamin aoodall, addreaaed to Hcaorabla C. Burtt ?otWr. CountyAttorney of San Patricia County, Sinton, Texaa, that Chapter 483 of the General **and** Special **Laws of**  the Forty-Fifth Lagialature of Texra, same being House Sill NO. 727 **3f** the Regular **3asaion.** aadHon. V*.P. Sexton,janwry It, 1949,page 4 carried forward as .rrticla 1055ia Vernon’s -otatad Coda of Crimiaml Procedure, pocket supptment, is **void and**  **uaconatituthnal. as**  **king in**  eontrawntion **af** s4ction 33 of .xrucia III oftha ConatitutioB of tha Shta of Texas; md that Artiela 1055.Co& ol Criminal ~Procedure, **1925,** 

### nothaving heen repealed,a nd the Mandatory act being usconatitutional and entirely void, is **still tha**  **law of**  Texas, uwi sll **fee** officara an aubjeet to ite provision.

Article 1355,Code of Criminal Procedure. 1925, thaAct sought to ba emended, and theAct which this Lepartmant holds to be the law, now readr:

‘Articla 1055. Half Coat -:fficara. Tha county shall ha liahla to each officer and witness **hwin#** coata **in a** 

### misdemeanor wee **for only**  **SW-h8lf** thereef **whem tha**  **defendant has**  **ntiafbd tba**  **&a and**  coats **adjudged** 

## against hfminfullby~borin~wor~ou~,on~ county farm. onthe public 

### roads. or upon my public works **of** the county, and to pay such oaa-half of such legal coats as **may** have been so taxed, not including commiasiana. The CountyJudge rball iaaw his vrrrrant upon the **County** Treraurer **in favor**  of the proper party. and thelw shall ti paid out ofthe 

### road **and bridge**  fund. or 

### other **fuada not**  **otherwise** appropriatrd.” In view **of** tin above provision of tha 181~. you are advised that if the sheriff actually committed and **released** the primmer, and the priaowr aatiafied the fine end **costs** adjudged against him **in full**  **hy labor**  **iat he**  **workhouse.** 

### on**the county**  **farm, on**  **the** public roads, or upon any public works ofthe county, tha sheriff would ba entitled to --half of the regular fees to be paid by the cou.nqq otberrtae, the 

### sheriffwould not be entitled to my fees until and unlaaa the &fen&at paid the **fina aad**  coats adjudged **against** him. In wither instance would ha W entitlad to any fee **unlearn he**  actually committed **aad** releraed **the prisoner,**  f~orthe reasons set **out** abow.

Trusting that this sufficiently amwere your inquiry, 1am Yours wry truly. ATTORNZY GENEiGL CF TZ:,XAS
BY a/ h. C. ikartinAssistant ti’/..:FG:vmb APTR,3YED ATT3RNEY CZNERAL ffF TEXi:3