- _
R-221
Hon. Homer D. Eck Opinion Ra. V-112
County Auditor
Fayette County Rer Fees due a constable and
La Grange, Texas a related matter.
Dear Mr. Eck:
Your request for ,an opinion of this Department
is substantially as follows: "L,,
" : 1':"!~ ~.,.) *
"Fags+&8 Oounty has its oounty offioeri
.
on a salary basis and its precinct officers,
suoh as the conetible end justioe of the peace,
on a fee basis. One e? the constables arrested
,. a defendant in a forgory aaqe,,a~,,t,bta,n.broaght
-'b him eto "the 'county jr$J.',' 1_ ,'&.,' : " + 1, .~.',
I /i"$ : * /t,,
9,,r,*' '1flIn,view $P'the a&?+e iact$; ~&&II give
me ,your opi,nio& on the”‘fbilowipg .qises,t,ienr9;
“1. How much is the constable entitled
to for making the arrest and committing the
‘, prisoner?
,~,i “2. Under the ‘above facts, what mileage
,i is the’ constable entitled to if he travels 8
,I? ,: miles with the warrant to make the arrest and
.b '* .’ 23 miles ,wfth the prfsener from the point af
.;. i:: making ‘the ‘arrest tc the county jail ,,in his
,, :i own automobile?
:,
“3 o Does Article 1029’C.C.P. as amended
by the 43rd Legislature entirely supersede the
old Article 1029 C.C.P. sinoe the old Artiole
1029 C.C.P. gives more detailed fees for services
performed by the officer? In other words, which
Article are we to follow, the old Article 1029
C.C.P. or the new Artiole 1029 C.C,P. as amenaed
by the 43rd Legislature in 1933?11
Article 1030 of the Code of Criminal Procedure
provides in part as f~ollows:
Hon. Homer D. Xck, Page 2, V-112
“In each county where there have been cast
at the’ preceding presidential election less than
3,000 votes, the sheriff or constable shall re-
osive the following fees when the charge is a
felony:
*. 0 . provided, that in counties that
have a population of less than forty thousand
inhabitants, as shown by the preceding Federal
census, the following fees shall apply: For
ezeouting each warrant of arrest or oapias, or
for making arrest without warrant, when auther-
iced by law, three dollars and fifteen cents fcr
eaoh mile actually and neosssarily traveled in
gaing to glaoe or armat, and far ookt~eping
prisoners to jail, mileage a8 provided rer in
subdivision 4 shall ba allowed;. e .
n. . a
“4. For removing a prisoner, for each mile
going and ooming, including guards and all other
expewes , when traveling by railroad, tan aents;
whan travellag otherwise than by railroad, fltteen
oente; provided, that when more than one prisoner
is semoved at the same time, in aaditirn to the
foregsing, he shall only be allawed ton crnta a
mile for eaoh edditlonal prisoner.*
Pursuant ta the established departmental TUIW
of tit&S office and the Comptrollerla offiea, Artiiols
3
10 Q, applies to all counties having a population 0r 10114s
tbaa 40,066 inhabitants according to the pMeading Tad-
oral census regardless of the number of votes oas$ at
the preoeding presidential electlo& Faystrid, Ds,anty has
a pepulation or less than 40,000 inhabitanta; thrrefors,
;$l..l. 1030 is applioable to that county agd fta earn-
0
Article 1020, C.C.P., provides, in part, as
r0iiOws:
*$herlffs and Constables serving preassa
and attending any examining oourt in the ex-
amisation of may releny ease, shall bo antitled
to such fees a8 are fixed by law fox similar
services in misdemaamar oaees in gstnnty Boart
t@ be paad by the State, not ta exoasl Fear and
Mo/lO@ ()e.OO) Dollars in any @BE,ease, raPl
Hon. Homer D. Eok, ,Page ,3, V-112
mileage actually and nedesaarily traveled in
going to tha plaos of arrest, and ror ewirey~~~
the prisoner or prisoners to jail a8 pravfdatl
in Articles 1029 and 1030, Code of Criminal Pxv-
oedine, as the ,faots may be, but no mileage
whatever shall be paid for summoning or attaoh-
lng witnesses in the oounty where cat30is pending.
Provided no sherirr or oonstable ahall, rueeivr
. rros the State any ld&itional ai.leag8 ror ‘hay
subsequent arrest ai a derendant in the same ease,
ore in any other ,oasp in, an examining boar% ‘or in
any distriot oourt..based upon the same oharge 6~ up-
on, the ‘same criminal a&., or growing out of, the safne
criminal transaction, ihether the arrest is made
with or without a warrant, or bei6re.or after indict-
ment, and in no eraht shall he be .allewd to dupli-
oate his reea ror dIeage r0r natking crreste;~fith’
or without warrant, or when twe or. Bmre ~*arrantta
of arrest or oapieses are served or ooald hard bean
served on the same defendant on. any one day.7
In answer to your riw paotual situation, we
are herewith enclosing a copy OS Opinion Do. O-2574, ren-
dared ‘by this Department on August 3, 1940. Those fees
allowed in miedemsanor cm808 (Artiole 1068, C.C,P.) may
be taxed, b&may net exceed Foar ($4.00) Dollars, to-
gether with nileager
In your second taotu81 81tuat1ent it is the
opinion of this Department that the ooastible would be
entitlpd t0 riifera (15#) 0m5 per 8ile r0r,th6 d*t
tiles, traveled, to the plabe of lrsust and a’total or’
thirty (306)’ osnte er 811e for r&arming said priaoa-
or to the oounty ja E 1; rirtm (1!5#) oeatu ror ,the or-
rioer and rirteen (15d) aents ror the’p’riaoner ,ror erah
mile actually and neoessrrily tY!atsleil when travel1
private oenveyanoe 0 (Binford vao Ilbbinaoa, 244 8.W.30;3 ”
Rowena?, when traveling b nil or btw, the, Wnsfable
would be entitLed to ten 7 lO#) oents per mile for each
mile going.ana ooming and ton (lo+!) o(lnts par able ?or
+urn+ig said prisoner.
Inasmuoh as it is the ruling of t,hfa office
that your- bounty la rerned by fhe:praris~ions of Arti-
cle ,103o, C*,C.P., a Tlsa~sion or your thir& raotual~
situation ,is not deemed neosssary, surri0e it to say,
the Legislature, in ,1933, 43rd Legislature, dhapter W,
page 144, only amended Section 5 of Artiole 1029 or the
Codes of Uriminal~ PEaoedure 0 one or iwre 0r the Artiolen
Hon. Homer D. Eck, Page 4, V-112
or Seotions of an Act may be amended without reenaating
the entire statute. (39 Texo Jura, pe 127).
-
1. The fees due and awing a aonstable
performing servioss on a fee basis in Fayette
County, whose population is less than 40,000
inhabitants according to the preoeding Federal
Oensus, are gcverned by the provisions of Ar-
ticle 1030, 1020 and 1065 a? the Code ef Crlm-
inal Prooedare,
20 A constable in Fayette Oounty, whose
population aocording to the preceding Federal
Census is less than 40,000 inhabitants, would
be entitled to fifteen (15#) cents per mile for
the eight miles traveled to the place of arrest
and a total of thirty f30#) cents per mile rer
returning said prisoner to jail: IS+! for the of-
ficer and 15# ior the prisener for eaoh mile ad-
tually and neoessarily traveled when traveling
by private aonveyanae, (Binford vs. Robinson,
244 9-W. SO7.)
Yours very truly
ATl!ORl0!L!?O5S5lULOFTEEAS
lurnell Weldrep
APPROVED
MAR. 26, 1947
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