## THB ATTORNEY GENERAL OFTEXAS
GERALDC. I&ANN A~JSTXN11.- ATroRNEY GENJZRAI. May 11, 1939 Hon. NedMcDaniel County Attorney Wichita County Wichita Falls, Texas Dear Sir: Opinion No. O-1078 Ae: Whatfee is aconstable entitled whenhe 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 manyinstances in this county the constable accompanies the Hiahwav Patrolmen. or vice versa. ongeneral 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 onconviction:

“1. For executing each warrant of arrest or capias, or making arrest without warrant, twodollars.” 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 anymanner, 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. OnSeptember 2, 1936, this Department rendered anopinion addressed to Mr. Allen C. Wilson, County Attorney, Boerne, Texas, written byHon. Joe .I. Alsup, Assistant Attorney General, upon the samequestion as presented in your inquiry andheld that theHon. NedMcDaniel, May11, 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 byHon. Joe Sharp, Assistant Attorney General, L. 0. Osborne, County Attorney, Canton, Texas, on June 14, 1937,this Department again passed onthe question we nowhave under consideration andheld that a sheriff or constable is not entitled to any fees for any service or for making any arrest unless he actually madethe arrest himself or participated therein. Under the general rule as discussed in Texas Jurisprudence, Vol. 34, page 5’15where twoofficers 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 noevent, participate in the division since they are ona 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 inyour letter that the constable does in fact makethe arrest when heaccompanies the highway patrolmen ongeneral patrol duty. You are respectfully advised that it is the opinion of this Department that when the constable accompanies the highway patrolmenand 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 whenas arrest is madeand does not actually makethe arrest himself or participate therein, hewould be entitled to nofee. Trusting that the foregoing answers your inquiry, weremain Yours very truly ATTORNEY

GENERAL

OFTEXAS

AWtAW/cge BY APPRaVED

: ATTORNEY

GENERAL

OFTEXAS Ardell Williams Assistant