‘r --. -
The Attorney General of Texas
December 31, 1982
MARK WYITE
Attorney General
Honorable Mike Driscoll Opinion No. w-561
S”preme court BUlllmQ Harris County Attorney
P 0 BOX 12548
1001 Preston, Suite 634 Re: Costs and fees charge in
Aus,!“. TX. 78711. 2548
5121475-2501 Houston, Texas 77002 misdemeanor cases
Teiel 9101874.1367
Telecopier 5121475.0266 Dear Mr. Driscoll:
You have asked for an interpretation of article 53.01 of the Code
1607 Mm St.. Suite 1400
Dallas. TX. 752014709 of Criminal Procedure. This statute provides, in pertinent part:
2141742-8944
The following fees shall be allowed the sheriff,
or other peace officer performing the same
4824 Alberta Ave.. Suite 160
services in misdemeanor cases. to be taxed against
E, Paso. TX. 79905-2793
91515333484 the defendant on conviction:
1. For executing each warrant of arrest or capias
1220 Dallas Ave.. Suite 202
or making arrest without warrant, $3.00.
mus,on. TX. 770026986
7 13mloa666
. .. .
806 Broadway. Suble 312 Your questions are as follows:
Lubbock. TX 79401.3479
806’747.5238
1. If a Texas Department of Public Safety
patrolman issues a traffic ticket, should an
4309 N. Tenth. Suite 8 arrest fee be taxed against the defendant upon
McAkn. TX. 78501.1685 conviction of a misdemeanor?
5121682-4547
2. If question (1) is answered in the
200 Ma,” Plaza. SUIIS 400 affirmative, should the Texas Department of Public
San Antomo. TX. 78205-2797 Safety, sheriff, or precinct constable receive the
5121225-4191 arrest fee?
Traffic tickets are issued pursuant to the following provisions
of article 6701d, the Uniform Act Regulating Traffic on Highways:
sec. 147. Whenever any person is arrested for
any violation of this Act punishable as a
misdemeanor, the arrested person shall be
irmaediately taken before a magistrate within the
county in which the offense charged is alleged to
have been committed and who has jurisdiction of
Ilrm,r;~l,lu Mlku Ilrl:,f.r,I I - l’agc 2 (MW-561)
such offense and is nearest or most accessible
with reference to the place where said arrest is
made, in any of the following cases:
1. When a person arrested demands an immediate
appearance before a magistrate;
2. When the person is arrested upon a charge
of negligent homicide;
3. When the person is arrested upon a charge
of driving while under the influence of
intoxicating liquor or narcotic drugs;
4. When the person is arrested upon a charge
of failure to stop in the event of an accident,
causing death. personal injuries, or damage to
property;
5. In any other event when the person arrested
refuses to give his written promise to appear in
court as hereinafter provided.
Notice to appear in court; promise to appear
Sec. 148. (a) Whenever a person is arrested
for any violation of this Act punishable as a
misdemeanor, and such person is not immediately
taken before a magistrate as hereinbefore
required, the arresting officer shall prepare in
duplicate written notice to appear in court
containing the name and address of such person,
the license number of his vehicle, if any. the
offense charged, and the time and place when and
where such person shall appear in court.
Provided, however, that the offense of speeding
shall be the only offense making mandatory the
issuance of a written notice to appear in court,
and only then if the arrested person gives his
written promise to appear in court, by signing in
duplicate the written notice prepared by the
arresting officer; and provided further, that it
shall not be mandatory for an officer to give a
written notice to appear in court to any person
arrested for the offense of speeding when such
person is operating a vehicle licensed in a state
or country other than the State of Texas or who is
a resident of a state or country other than the
State of Texas, except as provided by the
2. 2057
I
Honorable Mike Driscoll - Page 3 (MT-561)
Nonresident Violator Compact of 1977. (Emphasis
added).
The specific language of sections 147 and 148(a) suggests that a
person who is detained and issued a traffic ticket has been arrested.
Any peace officer is authorized to arrest without warrant any person
found violating any provision of article 6701d. V.T.C.S. Sec. 153.
See also Code Grim. Proc. art. 14.01 (a peace officer may arrest
without warrant an offender committing offense in his view).
The Code of Criminal Procedure provides the following with
respect to the occurrence of an arrest:
A person is arrested when he has been actually
placed under restraint or taken into custody by an
officer or person executing a warrant of arrest,
or by an officer or person arresting without a
warrant.
Art. 15.22. This definition of “arrested” should be used to construe
article 53.01. See art. 5429b-2, 12.01; Brown v. Darden, 50 S.W.2d
261 (Tex. 1932). An arrest is complete when a person’s liberty of
movement is restrained. Hardinge v. State, 500 S.W.Zd 870 (Tex. Grim.
App. 1973).
Although a detention for purposes of issuing a traffic ticket
does not constitute a custodial arrest so that a warrantless search is
authorized, Christian v. State, 592 S.W.Zd 625, 629 (Tex. Grim. App.
1980). the individual has been placed under restraint so that he is
“arrested” within article 53.01 of the Code of Criminal Procedure. We
note that the arresting officer must see him violate the law. Code
Grim. Proc. art. 14.01. Accord, Attorney General Opinion C-688
(1966). We do not determine whether this “arrest” constitutes an
arrest for any other purpose. Thus, if a Department of Public Safety
officer issues a traffic ticket, the arrest fee should be taxed
against the defendant upon conviction of a misdemeanor.
You also wish to know whether the Texas Department of Public
Safety, the sheriff, or the precinct constable should receive the
arrest fee collected from a convicted defendant when the ticket was
issued by a Department of Public Safety Officer. Article 53.01 of the
Code of Criminal Procedure allocates the fee to the arresting officer.
See Attorney General Opinions M-184 (1968) ; O-7298 (1946). A sheriff
or constable who did not issue the ticket is not entitled to the
arrest fee. It should be forwarded to the Department of Public Safety
for appropriate disposition.
p. 2058
. ,
Honorable Mike Driscoll - Page 4 (MW-561)
SUMMARY
Article 53.01(l) of the Code of Criminal
Procedure is applicable to misdemeanor cases when
an arrest is made without a warrant and a traffic
ticket is issued, and a fee of three dollars
should be taxed against the defendant on
conviction. When a Department of Public Safety
patrolman issues a traffic ticket that results in
a conviction the fee would not go to the local
sheriff or constable. We do not determine whether
a detention for purposes of issuing a traffic
citation is an “arrest” for any other purpose.
Attorney General of Texas
JOHN W. FAINTER. JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Charles Palmer
p. 2059