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Honorable Tom L. Hartley Opinion Ro. O-3791 

Criminal Distric t Attorney Re: 18 the chief of police enEdlnburg. -_ Texas titled to act in the mentioned capacity and tranaport prisoner5 to the coun= 

ty jail out of his jurisAttention: Hr. H.H.R~ankin,Jr. diction in an automobile 

furniahed by the city and 

receive a fee therefor, or 

should prisoners be turned 

over to the constable or 

sheriff? And related quesDear Sir: tlons. 

This will acknowledge receipt of your requeat for the 

opinicn of this department on the hereinabove captioned matter. 

We quote from your original letter and your subsequent letter, 

giving us additional facts, a8 follows: 

"The Chief of Police of the City of MeAllen, 

i. home rule city, Hidalgo County, Texasr, is paid 

a. certain definite salary per month for his services as such to said City. He further from time 

to time files cases charging JuBtice Court miademeanors In the Justice of the Peace Courts in 

the McAllen Justice Court precinct. On such occaaion he performs all the duties of a aheriff or 

constable such aa making the arrest, summoning a 

jury, waiting upon the Court, and in ease the fine 

5s not paid, the execution of the commitment by 

,transporting the prisoner to the county jail. In 

the transportation of theae prisoners he uses an 

automobile furnished him by his employer, the City 

of McAllen, and it Is necessary for him to leave 

the City In which he has jurisdiction in order to 

get the prisoner to the County jail. As a matter 

of practice the people he arrests, who are in a 

loosition to, pay a fine, are tried and fined in 
Hon. Tom L. Hartley, page 2. (O-3791) 

the Corporation Court. Cases are only filed in 

Ju&ice of the Peace Courts when it appears In 

all probability that the Defendant will not be 

able t;o pay the fine and have to be committed to 

jail * 

"1 . The specific offenses involved In these 

ciiBe6 are disturbing the peace, affrays, assault 

and battery, drunk in a public place, and other 

s:Lmilar offenses of which both the Justice of the 

Pt?ace Courts and the Conporation Court have concurrent jurisdiction. 

"2 . The offense5 in queation axe all committed within the corporate limits of the City 

of McAllen, Texae. 

“3 . All of the complaints filed in the Just:Lce Courts are for violations of the State laws. 

IJo complaints are filed in the Justice courts for 

v:lolation of city ordinances, however, in some 

cases there may also be a valid city ordinance 

covering the same offense as is covered by the 

&ate laws. 

“4. The great majority of the arrests in 

the cases in question are made without a warrant. 

“5. Those arrests made with warrants, in 

cases handled by,the.Chief of Police in the Justice Courts, are all made on warrants Issued out 

of the justice court where the case is filed. Epo 

warrrants of arrest are issued out of the Corporation Court in cases filed or to be filed in the 

Jiratice Courts. 

'The Information that this office has received 15 that a~ a matter of actual practice the majority of the arrests are made without warrants and 

g:?ow out of offenses committed within the sight of 

a-.kzh police officer as he cruisea about the City 

ore &Allen in the discharge of his duties as Chief 

5-r Police of aald City, 

"After the offender Is arrested he Is then 

transported to the city jail to await trial. It 
Honorable Tom L. Hartley, page 3 (C-3791) 

is then, or at some time before the case come8 to 

trial, that the Chief of Police decides whether 

to file that particular case in the Corporation 

Court or in one of the Justice Courts in the City 

of McAllen.n 

"This office is familiar with your opinion 

No. 2112 to the Hon. B. M. Whiteacre, County~Auditar, of Grayson Caunty, Texas, dated April 1,19&O, 

and the authorities therein mentioned. 

"In view of the above statement and the above 

mentioned opinion rendered by yo'ur office we wonld, 

appreciate having the following questions answered. 

"1. Is such Chief of Police entitled to act 

in such capacity and transport prisoners to the 

County jail, out of his jurisdiction in an automobile furnished by the City and receive a fee therefor, or s,ho,uld prisoner8 be turned over to Constable 

or Sheriff? 

"2 a Is such Chief of Police a proper officer 

to summon a jury under Article 892 of Code of Criminal Procedure of Texas to try the cases he has 

filed, and if so, receive a fee for such service? 

“3 . Doea the fact that such officer is paid 

a salary by the City affect his right to receive 

fees? 

“4 0 Is It proper for a,uch officer to pay the 

fees he receives into the treasury of the City that 

employs him? 

“5. Would such Chief of Police be req,ulred, 

if entitled to these fees, to make an annual report 

of the same as a duly elected Constable?Y 

The statutes provide~for the election by the people 

of a City Marshal (Article 977, V.A.C.S.) who shall be ex officio chief of police. Articles 999 and 1147, V.A.C.S., prescribe his powers and duties. 

City Marshals are peace officers. Article 36, V.A. 

C.C.P., reads as follows: 
"The following are Ipeace offlcer~:~ the 

sheriff and his deputies, constable, the marshal 

or policemen of an Incorporated town or city, the 

officers, non-commissioned officers and privates 

of the State ranger force, and any private perao; 

specially appointed to execute criminal process. 

Article 1067, V.A.C,C.P., provides that: 

"Constables, marshals or other peace officers who execute process and perform services for 

justices in criminal actions, shall receive the 

same fees allowed to sheriffs for the same services." 

Article 40, V.A.C.C.P., provldea as followsr 

"If any sheriff or other officer shall wilfully refuse or fall from neglect to execute any 

summons, subpoena or attachment for a witness, or 

any other legal process which it is made his duty 

by law to execute, he shall be liable to a fine 

for contempt not less than ten nor more than two 

hundred dollars, at the discretion of the court. 

The payment of such fine ahall be enforced In the 

same manner aa fines for contempt in civil casee." 

Article 26, V.A.P.C., reads as follows: 

"The term 'criminal procees' iis intended to 

signify any capiaa, warrant, citation, attachment, 

or any other written order lsa,ued in a criminal 

proceeding, whether the aame,be to arrest, czmmit, 

collect money, or for whatever purpose used. 

In answer to your first question, it is the opinion 

of this department, under the facts stated, that the chief of 

police is not entltled as a matter of right to act in any of 

the capacities mentioned, except to make the arrest, under 

the facts stated. He la however, authorized to aot in the 

other capacities named (summon a jury, wait upon the court, 

and in case the fine is not paid, to execute the commitment) 

when ordered to do so by the~justice of the peace In each 

instance. The justice of the 'peace cauld order the sheriff 

or constable to-perform any of-the services neceeaary subsequent to the arrest by the chief of police. Where the chief 

of police la ordered to perform such servicea by the justioe 
Honorable Tom L. Hartley, page 5 (O-3791) 

of the peace, he mus,t do so and,is entitled to receive the 

statutory feea provided for s,uch ,eervices. 

Whether he can use the city's automobile in transporting such prisoner to the county jail, out of his jurisdictior., and whether he must turn such fees over to the 

city, are questions which depend on the charter, ordinancea, 

or his contract with the city, specifying the terma of his compensation. We therefore express no opinion on these latter 

questicns. 

Article 892, V, A, C,C.P., reads as follows: 

"If the accused does not waive a trial by jury, 

the justice shall issue a writ commanding the proper 

officer to summon forthwith a jury of alx men qualified to serve a,s jurors. Said j,urora when so summoned shall remain in attendance aa jurors in all eaees 

that may come up for hearing until discharged by the 

court. Any man so s,ummoned who fails to attend may 

be fined not exceeding twenty dollars for contempt," 

In answer to your second question, It Is the opinion 

of this department that, under ,the facts stated, such chief of 

police ie a proper officer under Article 892 to s'ummon a jury 

to try the cases he has filed and is entitled to receive the 

statutory fee for such service, 

Home Rule cities are expressly given the authority 

to fix the compensation of their officers. Article 1175, 

V.A.C,S. The city could, therefore, pay the chief of police 

a salary only, or, a salary and, in addition, permit him to 

retain part or all of the statutory fees, or he could be paid 

strictly on a fee basis, 

While the fact that such ofricer is paid a salary by 

the city, as stated In yo'ur question, wo,uld not affect his 

right to receive the statutory feea provided for the services 

rendered by him, it might affect his right to retain such fees 

for himself. 

In answer to your third question, It Is t,herefore 

the opinion of this department, under the facts stated, that 

such officer is not prohibited from receiving the statutory 

feea for the services rendered by him. Whether such officer 

may keep such fees for his own use aa a part of his compenaation, however, is a question which depends on the terms of the 

ordinance or agreement fixing his compensation. As we have not 
Honorable Tom L, Hartley, page 6. (O-3791) 

been advised as to the exact nature of the terms of his 

compensation, we are unable to paas upon that apecifio point. 

However, in your third question you atate that such 

officer Is paid a salary by the city. If the ordinance, fixing his compensation, provides merely that he shall be paid 

a salary and doea not expressly authorize him to retain, In 

addition thereto, any fees as part of his compensation, then, 

we are of the opinion that he would not be entitled to retain 

such fees as part of his compensation, but should pay them 

into the City Treasury. 

Statutes prescribing fees for public officers are 

strictly construed and hence a right to feea may not rest In 

impllcatlon. Where this right is left to construction, the 

langua.ge of the law must be construed in favor of the government. Where a statute Is capable of tw~o constructiona, one 

of whi.ch would give an officer compensatlon,for his services 

in addition to hia salary and the other not, the latter construct'lon should be adopted, 34 Tex. JuP., pages 508, 509. 

In answer to your fourth question,. it is therefore 

the opinion of this department, under the facts atated, that 

unlem the city ordinance or agreement fixing the compensation 

of a,uah city marshal expressly and clearly authorizes him to 

retain such fees aa part of his compensation, it would not 

only be proper for him to pay his feea Into the city treasury 

but he would be subject to criminal prosecution if he applied 

such fees to his own use. See Article 95, V.A.P.C. 

Article 3896, V.A.C.S., requiring certain officials 

to kef?p accounts In the manner therein set out, and Article :'- ,i_ 

3897, requiring certain official6 to make an annual sworn 

staterrent, does not apply to a city marahal or chief of police. 

Such officer ie, however, required to keep a fee book in aocordance with Articles 1009-lOlOA, V.A.C.C.P. 

In answer to your fifth question, you are,therefore, 

advised that, under the facta stated, it is the opinion of 

this department that such chief of police is not subject to 

the requirements of Articles 3896 and 3897, V.A.C,S,, but that 

he must comply with the requirements of Articles 1009-lOlOA, 

V.A.C.C.P., regarding fee books. 
Bonora~ble Tom L. Hartley, page 7 (o-3791) 

Trusting that the foregoing fully anewera your 

inquiry, w,e are 

Very truly yourt3. 

ATTORHEY GEHEZtAL OF TEXAS 

APPROVED OCT. 16, 1941 

/a/ Grover Sellers 

FIRST ASSISTANT 

ATTQRHEY GENERAL 

By /a/ Edgar Pfell 

Ecigar Pfell 

Aaaiatant 

APPROVED 

Opinion 

Cammittee 

By B.U.B. 

Chairman