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+ a Jurtice 

of thm Peace issws l warrant of armat and aubpoena 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 or not? 

‘(2) lf a peison convicted of l mfsdemeaaor 

aad the Juatico of the Aace issws a eommitiat to 

the sheriff and the sheriff does not place the convicted parson in jaU, but lata him go on a promise 

to day the fiue and coats in the futura and doer +y 

it later, is the sheriff entitled to eoilect from the 

convicted person the fee for commitment and releaw7 

‘(3) .Yhea ths 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 attorney 
Hon. :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 sher iff entttled to a fee for cwnmitment sd nlerse whether orn ot the convicted 

person pays fhu? 

‘I will appreciate your opiaioa on the 

abow qwstioas as the sheriff and justices 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 perform 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 or suspected crime.g (15 &iv. JL?). 

Article 239 of the 1925 Texas 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, J aauary 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 u nty Atto r a sy, who is entitled to a fee on a plea of 

guilty in the Justice 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 allewd. 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. 

1 would like to call your attention further to .~.rticle 

1Oll of 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 Gapartmeat 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&d the 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 not be 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 unlearn the 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 317 of the ?enal Code of Texam of 1325, which reeds as followa: 

-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 maid In the came of Lucky 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 to jail until the fixta aad costs 

are paid is guFlty of 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 who negligently perrr:itm much 

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 him haads requiring t&e arrest 

of I) p er so n l ceumed of a misdemeanor whereby 

tbe l ceuud escapes, or who wilfuily refuses to 

receiw into s jail under him charge or to receiw in him custody mny person lawfully committed to his cumtody on 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 1925 Code of Criminal Sroeedura of Texas provfde a: 

reds: 

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

a defendant for a pecuniary fk#. if he im premeat, 

he shall be irnprimoned ia jail uatfl discharged as 

provided by law. A certified copy of such judgment 

shall be sufficient to authori= much imprisoaxnent.’ 

Article 788 of the muna Code of Crivniwi Proudun, 

“lv hen a peeuatary fiae ham been adjudged 

againat a defendant aot present. 0 capiam mball 

forthwith be issued for him arrest. The sheriff 

shall execute tbe same by placieg the defendant 

in jail.’ 
Hon. iv. P. .%mt&, Jamuy 12, 1939, paae 5 

article 789 of tha Code of Criminal ?rocedure reads 

*. folloaa: 

Q%er e l wh c a p k a iaa~a, it sh a ll a ta ts 

th8 r*ndition 84 amaunt o f the judgment a nd 

th a amount unp a id ther eo n. a nd eo ¶nmr Pd 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 to jail, and permitting 

the priaonar to 90 at large. than the officer would be guiity of 

permittinq the priaaner to l aupa or refusing to receiw raid 

priaornr aa set out ia tba Article8 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 949 of the 1925 Coda of Criminal Procedure provide a: 

‘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 of the above atatiates, it is our qdnion that the 

money collected by the sheriff shall forth with be paid owr to 

t.ka proper 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 to the last sentenca in your third paragraph, yoo 

are adviaed that this Ceparflrent has held a conferenca opinion, 

dated January 11, 1939, written by Aaaiatant Atiorrjr General denjamin aoodall, addreaaed to Hcaorabla C. Burtt ?otWr. County Attorney 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. aad 
Hon. V*. P. Sexton, janwry It, 1949, page 4 

carried forward as .rrticla 1055 ia Vernon’s -otatad 

Coda of Crimiaml Procedure, pocket supptment, is 

void and uaconatituthnal. as king in eontrawntion af 

s4ction 33 of .xrucia III of tha ConatitutioB of tha Shta 

of Texas; md that Artiela 1055. Co& ol Criminal ~Procedure, 

1925, not having 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, 

tha Act sought to ba emended, and the Act 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. on the 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 

County Judge rball iaaw his vrrrrant upon the 

County Treraurer in favor of the proper party. 

a nd the l w shall ti paid out of the 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 of the county, tha sheriff 

would ba entitled to --half of the regular fees to be paid by the 

cou.nqq otberrtae, the sheriff would 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~or the 

reasons set out abow. 

Trusting that this sufficiently amwere your inquiry, 1 am 

Yours wry truly. 

ATTORNZY GENEiGL CF TZ:,XAS 

BY a/ h. C. ikartin 

Assistant 

ti’/..:FG:vmb 

APTR,3YED 

ATT3RNEY CZNERAL ffF TEXi:3