Honorable John 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 Criminal Procedure, 

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 captioned matter. 

The question which you have 

ration may be stated as follows: 

request for an opinion 

raised for our consideWhether the fees made taxable to the 

Defendant under Article 53.01, Vernon's 

Code of Criminal Procedure, Acts of the 59th 

Legislature, 1965, may be taxed against a 

defendant irregardless of whether the duties 

relating thereto are actually performed, 

Your opinion request reads in part: 

n (W)hen the Department of Public 

Safety"&'fcera file a complaint, (In the 

justice court for highway traffic vlolatlons) 

no warrant or summons is Issued until after a 

defendant might 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 

officers have 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 commitment or 

release. 

-2935- 
Hon. John R. Foster, page 2 (C-605), 

1 

11 .(I)t appears to me that it would be 

the beit'practice for the Justices of the Peace 

to deviate from their practice here and to always issue a warrant (or summons) upon accepting 

a complaint, which warrant Could,be served on 

the defendant when he appeared at the time appointed on his ticket, or turned over to the 

Sheriff if no appearance Is made. The Justice 

should then collect from the defendant, not 

only the fine Imposed, but the Sheriff's or 

officer's fee for making the arrest under the 

warrant and for the commitment and 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 officer performing 

the same services in misdemeanor cases, to be 

taxed against the defendant on conviction: 

"1. For executing .each warrant of arrest 

or caplas, or making arrest without warrant, 

$3.00. 

"2. For summoning each witness, $1.00. 

“3. For serving any writ not otherwise 

provided for, $2.00. 

"4. For taking and approving each bond, 

and returning the same to the courthouse, when 

necessary, $2.00. 

“5. For each commitment or release, $2.00. 

“6. Jury fee, in each case where a jury is 

actually summoned, $2.00. 

“7. For attending a priaoner on 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 conveying a witness attached by 

him to any court out of his county, $5.00. 

for each day or fractional part thereof, and 

his actual necessary expenses by the nearest 

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

practicable public 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 conveying a prisoner after 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 conveying a prisoner arrested 

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 

practicable route, fifteen cents. 

"11. For each mile he may be compelled 

to travel in executing criminal process and 

summoning or attaching witness, 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 corresponding thereto has been performed. It 

is a well settled rule In this State that statutes prescribing 

fees for public officials are to be strictly construed against 

#.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 collecting such 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," 

(timphasisupplied) 

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 performance of 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 

performance of each duty corresponding to 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 

-2938-