Untitled Texas Attorney General Opinion

Honorable Tom L. Hartley Criminal District,Attorney Edinburg, .Texas Dear Sir: Opinion Number O-2437 Rer Sheriffs and constables -- over- loading -- arrests without warrant-- Fees of office. Your request for opinion upon the following questionax 9. Does a constable or sheriff have any right under the law to mane an ar- rest for a violation of the 7,000 pound load limit law. without a warrant of arrest? “2. Does P constable or sheriff have any right, under the law, to make an arrest for a violation of the 7,000 pound load limit law, without a warrant of arrest,vhen such officer is accompanied by, and working in conjunction with, a wsight inspector of the Department of Public Safety? “3. Where an arrest is made; without a warrant, by a constable or a shpriff, Bither by himself, or in company with a weight inspector of the Department of Public Safety, of a tru&driver, for violation of the 7,000 pound load limit law, and the driver pleads guilty, is the constable or sheriff, as the case may be, entitled to anyfee for the arrest? Under these circumstances, is such officer entitled to afee for the release of the defendant, or to any other fee? “4. When a driver of a truok is arrested, without a warrant, for a violation Qf the 7,000,pound load limit law, and pleads guilty and offers to pay his fine, what are the legal costs and the amount thereof that oan%e assessed him by the Justioe of the Peace for such fine?" has been received and carefully considered by this department. Opinion No. O-1454 of this department holds, among other things, that constables and sheriffs do not have the right to make arrests without wurrants for violations of the load limit law. Said opinion con- taina a full discussion of said matter and we enclose herewith a copy of that opinion. Article 1011, Code of Criminal Procedure of Texas, provides that "no item of costs shall be taxed for a purported servios which U%W not performed, or for a service for which no fee is expressly provided hr." Honorable Tom L. Hartly, Page 2 (O-2437) This department has repeatedly ruled that constables and sheriffs are not entitled to fees except for services performed, as outlined by the fee statutes. See opinions numbers O-106, O-693, O-766, O-963, O-1160 and many others of this department. We quote from opinion No. O-693 of this department as followsr "A constable is not entitled to a fee of $2.00 (Artiole 1065, Code of Grim- inal Procedure) for reading a warrant of errest to a motoris for speeding when the motorist is in the custody of and under arrest by a Highway Patrol- man. An officer who discharges or releases a defendant from the force and effect of a judgment restraining him is entitled to collect the fee of $1.00 for a release." Opinion No. O-1120 of this department holds that it is the duty of the representatives of the mights and Measures Department to file a complaint against the offender when he weighs a truck and finds that it is overloaded. This opinion also holds that where the Weights and Measures officer arrests the defendant and weighs his truck and is accompanied by a constable end uses the constable's car that the constable is not entitled to any costs or mile- age fees. We enclose herewith a copy of said opinion. Opinion No. O-1189 of this department holds that only where the facts show that the defendant is in the actual and legal custody of a consta- ble at the time he pleads gu6lty and pays his fine is the constable entitled to a release fee. This opinion further holds that when the defendant mails his fine, voluntarily appears alone or appears in the legal custody of another officer, the constable is entitled to no release fee. We enclose a copy of that opinion. We also enclose a copy of Opinion No. O-963 of this department which contains a full discussion of several questions similar to your questions. Your questions are answered as folJows: Question No. 1~ No. Question NoJo. 2: No. Question No. 3r 'The constable or sheriff would not be entitled to an arremt fee because the same would be an illegal arrest for which no fees are allowed by law. The constable or sheriff would not be entitled to a re- lease fee unless the defendant was in the actual and legal custody of the sheriff or constable at the time he pleaded guilty and paid his fine. The constable or sheriff would not be entitled to any fees that they did not le- gally earn. Question No. 4: The Weights and Measures officers are not fee offioers and receive a salary from the State of Texas for their services. Constables and sheriffs are not entitled to fees for illegal services perform- ed nor are they entitled to any fees unlessthey perform legal services. The proper amount of costs in answer to question Wo. 4 is *s follows: Honorable Tom L. Hartley, Page 3 (O-2437) Trial fee . . . . . . . . . . . . . , . w.00 County Attorney's fee . . , . . . . . . 5.00 If the fine MWS assessed at $1.00, the defendant would have to pay $10.00 as fine and costs. Very truly yours ATTORNEY GEk?EFLk+L OFTZXAS By /s/R. J. Fanning V&I. J. Fanning Assistant APPROVED JIJN12, 1940 /s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS Approved Opinion Committee By B 1VB Chairman