HonorableJohn R. Foster

County Attorney Val Verde County Del Rio, Texas, 78840 Opinion NO. C-605 Re: Whether the fees made

Dear Mr. Foster: taxable to the Defendant under Article 53,01,Vernon's Code of CriminalProcedure, Acts of the 59th Legislature,1965, may be taxed against a defendant irregardless of whether the duties relating thereto are actually performed. This is In response to your relating to the captionedmatter.

The questionwhich you have ration may be stated as follows: request for an opinion

raised for our consideWhether the fees made taxable to the Defendantunder Article 53.01,Vernon's Code of CriminalProcedure,Acts of the 59th Legislature,1965, may be taxed against a defendant irregardlessof whether the duties relating thereto are actually performed, Your opinion request reads in part: n (W)hen the Departmentof Public Safety"&'fcera file a complaint, (In the justice court for highway traffic vlolatlons) no warrant or summons is Issued until after a defendantmight fail to appear on or before the time stated on the ticket he is given. Most of the people respond to the date on their ticket and pay their fine without having any warrant served on them. The Department officershave told the Justices of the Peace that they are, therefore,not supposed to collect Sheriffs'or peace officers' fees for making an arrest or for a commitmentor release. -2935-Hon. John R. Foster, page 2 (C-605), 1

11 .(I)t appears to me that it would be the beit'practicefor the Justicesof the Peace to deviate from their practicehere and to always issue a warrant (or summons)upon accepting a complaint,which warrant Could,beserved on the defendantwhen he appearedat the time appointed on his ticket, or turned over to the Sheriff if no appearanceIs made. The Justice should then collect from the defendant,not only the fine Imposed,but the Sheriff'sor officer's fee for making the arrest under the warrant and for the commitmentand release of the defendant." Article 53.01,Vernon's Code of Criminal Procedure, provides: 'The following fees shall be allowed the

sheriff,or other peace officerperforming the same services in misdemeanorcases, to be taxed against the defendanton conviction: "1. For executing .each warrant of arrest or caplas, or making arrest withoutwarrant, $3.00. "2. For summoningeach witness, $1.00. “3. For serving any writ not otherwise provided for, $2.00. "4. For taking and approvingeach bond, and returningthe same to the courthouse, when necessary, $2.00. “5. For each commitmentor release, $2.00. “6. Jury fee, in each case where a jury is actually summoned, $2.00. “7. For attendinga priaoneron habeas corpus,when such prisoner,upon a hearing, has been remanded to custod for each day's attendance,$ or held to bail, 4.00. "8. For conveyinga witness attachedby him to any court out of his county, $5.00. for each day or fractionalpart thereof,and his actual necessary expensesby the nearest

-2936-Hon. John R. Foster, Page 3 (C-605).

practicablepublic conveyance,the amount to be stated by said officer,under oath, and approved by the judge of the court from which the attachment issued. "9. For conveyinga prisonerafter conviction to the county jail, for each mile, going and coming, by the nearest practicable route by private conveyance,fifteen cents per mile, or by railway, fifteen cents per mile."lo. For conveyinga prisonerarrested on a warrant or capias issued from another county to the court or jail of the county from which the process was issued, for each mile traveled,going and coming,by the nearest practicableroute, fifteen cents. "11. For each mile he may be compelled to travel in executing criminalprocess and summoningor attachingwitness, fifteen cents. For traveling in the service of process not otherwise provided for, the sum of fif:$?n cents for each mile going and returning. two or more persons are mentioned in the same writ, or two or more writs in the same case, he shall charge only for the distance aczually and necessarily traveled in the same. It is the opinion of this office that no fee provided for by the above 'Article was intended to be taxed or collected until the duty correspondingthereto has been performed. It is a well settled rule In this State that statutesprescribing fees for public officialsare to be strictly construedagainst

#.W.2d-868

(Tex.Clv.App.1931);. M; dale, 112 Tex. 20Q. 246 S.W. 654 (1s ._ ii?'Tex. 84, 244 'S.W.;607(1922); Atty. Gen. Op: the officer collectingsuch fee. Curtin vt Harris County, 111 Tex. 568, 242 S.W. 444 (1922).Lim;sio$ County Robblns, 120 Tex. 341, 38 S.W.2d 580 (1931);yaEla ; Na:arr;:C;zE, 40 s C

. ty I inford v. Robinson,

hion C-282 (1964). 47 Tex.Jur.2d 213, Public Officers,Set, 168, states, in part, as follows:

81 .To entitle an officer to receive fees 0; :ommissions,the receipt thereof must have been provided for and the amount fixed by law; and he must have performed the services

-2937-Hon. John R,, Foster, page 4 (c-605).

for which compensation has been specified," (timphasis

upplied) Your question is answered in the negative. The fees provided for in Article 53.01 are to be taxed only after there has been a bona fide performanceof each duty corresponding to each fee taxed. SUMMARY The fees provided for in Article 53.01 are to be taxed only after there has been a bona fide performanceof each duty correspondingto each fee taxed. Yours very truly, WAGGONER CARR Attorney General of Texas

LC:cm APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Robert Owen Sam Kslly Wade Anderson Lonny Zwiener APPRWED FOR THE ATTORNEY GENERAL BY: T. B. Wright

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