THB ATTORNEY GENERAL 

OF TEXAS 

GERALD C. I&ANN A~JSTXN 11. - 

ATroRNEY GENJZRAI. 

May 11, 1939 

Hon. Ned McDaniel 

County Attorney 

Wichita County 

Wichita Falls, Texas 

Dear Sir: Opinion No. O-1078 

Ae: What fee is a constable 

entitled when he 

accompanies the highway 

patrol in making an arrest? 

Your request for an opinion on the above stated question has been 

received by this Department. 

Your letter reads in part as follows: 

“In many instances in this county the constable accompanies the 

Hiahwav Patrolmen. or vice versa. on general patrol dutv, and 

sor;letimes for the-specific purpose of-arresting specific-persons, 

whereupon all officers participate in the arrest to various 

extents.. Is the Constable entitled to a full or: partial 

arresting fee in such cases?” 

Article 1065, 

. follows: 

Code of Criminal Procedure; reads in part as 

“The following fees shall be allowed the sheriff, or other 

peace officer performing the same services in misdemeanor cases, 

to be taxed against the defendant on conviction: 

“1. For executing each warrant of arrest or capias, or making 

arrest without warrant, two dollars.” 

Each fee allowed under this statute is for a specific service 

performed. If the highway patrol makes the arrest and the 

constable does not participate in the arrest in any manner, he 

is not entitled to a fee in the case. The constable is only 

entitled to fees for services he performed as set out in 

Article 1065, supra. 

On September 2, 1936, this Department rendered an opinion 

addressed to Mr. Allen C. Wilson, County Attorney, Boerne, Texas, 

written by Hon. Joe .I. Alsup, Assistant Attorney General, upon 

the same question as presented in your inquiry and held that the 
Hon. Ned McDaniel, May 11, 1939 Page 2, 0-1078 

Justice of the Peace is unauthorized to assess. as part of the 

costs $2.00 for sheriff’s fees, where the sheriff performed 

no services in such cases. 

In an opinion wri 

addressed to Hon. 

tten by Hon. Joe Sharp, Assistant Attorney General, 

L. 0. Osborne, County Attorney, Canton, Texas, 

on June 14, 1937, this Department again passed on the question we 

now have under consideration and held that a sheriff or constable 

is not entitled to any fees for any service or for making any 

arrest unless he actually made the arrest himself or participated 

therein. 

Under the general rule as discussed in Texas Jurisprudence, Vol. 

34, page 5’15 where two officers with concurrent duties both perform a service for which a fee is due it should be prorated 

between them in propcrtion to the work done by each. Of course, 

this rule would not apply in this instance as the highway patrol 

could, in no event, participate in the division since they are 

on a salary. There is no statutory provision authorizing the 

highway patrol to collect the arresting fee provided for in 

Article 1065, supra, under any circumstances. 

You state in your letter that the constable does in fact make the 

arrest when he accompanies the highway patrolmen on general 

patrol duty. 

You are respectfully advised that it is the opinion of this 

Department that when the constable accompanies the highway patrolmen and actually makes the arrest himself or participates therein 

such constable would be entitled to the fees as provided by 

Article 1065, Code of Criminal Procedure. You are further 

advised that if the Constable merely accompanies the highway 

+ patrolman when as arrest is made and does not actually make the 

arrest himself or participate therein, he would be entitled to 

no fee. 

Trusting that the foregoing answers your inquiry, we remain 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

AWtAW/cge BY 

APPRaVED :

ATTORNEY GENERAL OF TEXAS 

Ardell Williams 

Assistant