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Honorable Tom L. Hartley OpinionRo. O-3791

Criminal District Attorney Re: 18 the chief of police enEdlnburg. Texas titled to act in the men-_ tioned capacity and tranaport prisoner5 to the coun= ty jail out of his jurisAttention: Hr. H.H.R~ankin,Jr. diction in an automobile furniahedby the city and receive a fee therefor,or should prisoners be turned over to the constableor sheriff? And related quesDear Sir: tlons.

This will acknowledgereceipt of your requeat for the opinicn of this department on the hereinabove captionedmatter. We quote from your original letterand your subsequent letter, giving us additional facts, a8 follows:

"TheChief of Police of the City of MeAllen, i. home rule city,Hidalgo County, Texasr, is paid a.certain definite salaryper 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 JusticeCourt precinct. On such occaaion he performsall the duties of a aheriff or constable such aa making the arrest, summoninga jury,waiting upon the Court, and in ease the fine 5s not paid, the executionof the commitmentby ,transporting the prisoner to the county jail. In the transportationof theae prisonershe uses an automobile furnishedhim by his employer, the City of McAllen, and it Is necessary for him to leave the City Inwhich he has jurisdictionin order to get the prisoner to the County jail. As a matter of practice the peoplehe arrests,who are in a loosition

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

the CorporationCourt. Cases are only filed in Ju&ice of the Peace Courts when it appears In all probability that the Defendantwill not be able t;o

pay the fine and have to be committed to jail*"1

. The specificoffenses 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 ConporationCourt 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 violationsof the State laws. IJocomplaintsare filed in the Justice courts for v:lolation

of city ordinances,however, in some cases there may alsobe 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 arrestsmade with warrants, in cases handled by,the.Chiefof Police in the Justice Courts, are all made on warrants Issuedout of the justice courtwhere 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 Informationthat this officehas received 15 that a~ a matter of actualpractice the majority of the arrests are made without warrants and g:?owout of offenses committedwithin the sight of a-.kzh police officer as he cruisea about the City ore &Allen in the dischargeof his duties as Chief 5-rPolice of aald City, "After the offender Is arrestedhe Is then transported to the city jailto await trial. ItHonorable Tom L. Hartley, page 3 (C-3791)

is then, or at some time before the case come8 to trial, that the Chief of Police decideswhether to file that particular case in the Corporation Court or in one of the JusticeCourts in the City of McAllen.n "This office is familiarwith your opinion No. 2112 to the Hon. B. M. Whiteacre, County~Auditar, of GraysonCaunty, Texas, datedApril 1,19&O, and the authorities thereinmentioned.
"In view of the above statementand the above mentioned opinion rendered by yo'ur officewe wonld, appreciatehaving the following questions answered. "1. Is such Chief of Police entitled to act in such capacity and transportprisoners to the County jail, out of his jurisdictionin an automobile furnishedby the City and receive a fee therefor, or s,ho,uld

prisoner8be turned over to Constable or Sheriff? "2a Is such Chief of Police a proper officer to summon a juryunderArticle 892 of Code of Criminal Procedure of Texas to try the caseshe 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 affecthis right to receive fees?“40 Is It proper for a,uchofficer to pay the fees he receives into the treasury of the City that employshim?
“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 electedConstable?Y The statutes provide~forthe electionby the people of a City Marshal (Article977,V.A.C.S.)who shall be ex officio chief of police. Articles 999 and 1147,V.A.C.S., prescribehis powers and duties.

City Marshals are peace officers. Article 36,V.A. C.C.P., reads as follows:"The following are Ipeaceofflcer~:~ the sheriff and his deputies, constable, the marshal or policemenof an Incorporatedtown or city, the officers,non-commissionedofficers and privates of the State ranger force, and any private perao; specially appointed to execute criminalprocess. Article 1067,V.A.C,C.P., provides that: "Constables,marshals or other peace officerswho executeprocess 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 shallwilfully refuse or fall from neglect to execute any summons, subpoena or attachment for a witness, or any other legalprocesswhich 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 discretionof 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 'criminalprocees' iisintended to signify any capiaa,warrant, citation, attachment, or any otherwritten order lsa,ued in a criminal proceeding,whether the aame,be to arrest, czmmit, collectmoney, or for whatever purposeused.
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 capacitiesmentioned, except to make the arrest, under the facts stated. He la however, authorized to aot in the other capacitiesnamed (summona jury,wait upon the court, and in case the fine is not paid, to execute the commitment) when ordered to do so by the~justiceof the peace In each instance. The justiceof the 'peacecauld order the sheriff or constable to-perform any of-the servicesneceeaary subsequent to the arrest by the chief of police. Where the chief of police la ordered to perform such servicea by the justioeHonorable 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 questionswhich depend on the charter,ordinancea, or his contractwith 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 commandingthe proper officer to summon forthwitha jury of alx men qualified to serve a,sjurors. Said j,urora when so summoned shall remain in attendance aa jurors in all eaees that may come up for hearing until dischargedby the court. Any man so s,ummoned who fails to attendmay be fined not exceeding twenty dollars for contempt,"
In answer to your second question, It Is the opinion of this department that, under ,thefacts stated, such chief of police ie a proper officer under Article 892 to s'ummon a jury to try the caseshe has filed and is entitled to receive the statutory fee for such service,

Home Rule cities are expresslygiven the authority to fix the compensationof 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,permithim 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,uldnot affecthis right to receive the statutory feea provided for the services rendered by him, it might affecthis 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 questionwhich depends on the terms of the ordinance or agreement fixinghis compensation. As we have notHonorable 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 apecifiopoint.

However, in your third question you atate that such officer Is paid a salary by the city. If the ordinance, fixing his compensation,providesmerely that he shall be paid a salary and doea not expressly authorizehim 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 prescribingfees for public officers are strictly construed and hence a right to feeamay not rest In impllcatlon. Where this right is left to construction,the langua.ge

of the lawmust be construed in favor of the government. Where a statute Is capable of tw~oconstructiona,one of whi.ch

would give an officer compensatlon,forhis 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 expresslyand clearly authorizeshim to retain such fees aa part of his compensation,it would not only be proper for him to payhis feea Into the city treasury but he would be subject to criminalprosecution 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, andArticle :'-,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 aocordancewith 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 requirementsof Articles 3896 and 3897,V.A.C,S,, but that he must comply with the requirementsofArticles 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,eare Very truly yourt3. ATTORHEY GEHEZtAL

OF TEXAS

APPROVED OCT. 16, 1941

/a/ Grover Sellers FIRST ASSISTANT ATTQRHEY GENERAL By /a/ Edgar Pfell EcigarPfell Aaaiatant

APPROVED Opinion Cammittee By B.U.B. Chairman