Hon. Geo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir:
Opinion NO. 0-1468
Re: Is the sheriff of Wlllacg County entitled
to mileage fees according to stated facts?
We are in receipt of your request concerning the
following question:
"The Sheriff of Willacy County went to
the State line on Justice of the Peace Warrant
for a defendant charged with burglary of a
store in Will&g County--a felony case. He,re-
turned with the prisoner to Willacy County; and
the Grand Jury returned an indictment against
the defendant for the'offense of burglary, based
upon the testimony given in the Examining Trial.
Upon trial of the case It was learned the defend-
ant was a juvenile and the case was transferred
to the County Court.
"Is the Sheriff of Willacy County entitl-
ed to his mlleage fees for going to and return-
ing from the place of arrest?
"You will notice in this/connection that
this fee is based upon the charge filedin the
Examining Court. .I refer you to Article 1020,
C.C.P.
"If you hold that the Sheriff 5s entitled
to the fee, then would the same rule apply to
reducible cases with reference to the fee?"
Article 1019, as amended, C.C.P., provides:
"If the defendant is indicted for a felony
ana upon conviction his punishment is by fine or
confinement in the county jail, cr by both such
flne and confinement in the county jail or convic-
Hon. Geo. H. Sheppard, page 2 o-1468
tea of a misdemeanor, no costs shall be paid by
the State to any officer. All costs in such cases
shall be taxed, assessed and collected as in mis-
demeanor cases."
Article 1020, as amended, C.C.P., in its second
and fourth paragraphs reads as follows:
"Sheriffs and Constables serving process and
attending any examining court In the examination of
any felony case, shall be entitled to such fees as
are fixed by law for slmllar services in misdemeanor
cases in County Court to be paid by the State, not to
ex~ceedFour and No/100 ($4.00) Dollars in any one case,
and mileage actually and necessarily traveled in goLng
to the place of arrest, and for conveying the prisoner
or prisoners to jail as provided in Articles 1029 and'
1030, Code of Criminal Procedure, as the facts may be,
but no mileage whatever shall be paid for summoning
or attaching witnesses in the county where case Is
pendlng. Provlded no sheriff or constable shall ~'
receive from the State any additional mileage for any
subsequent arrest of a~defendant in the same case,
or in any other case Fn an examining court or in any
district court based upon the same charge or upon
the same criminal act/or growing out of the same
crlm!na% transaction; whether the arrest Is made with
or wlthout a warrant, or before or after indictment,
and inno event shall he be allowed to duplicate his
fees for mileage for making arrests, with or without
warrant, or when two or more warrants of arrest or
caplases are served or could have been served on the
same defendant on any one day.
“i * * **
"The fees mentioned in this Article shall
become due and payable only after the Indictment
of the defendant for an offense based upon or
growing out of the charge filed in-the examining
court and upon an itemized account, sworn to by
the officers claiming such fees, approved by the
Judge of the District Court, and said County or
District Attorney shall present to the District
Judge the testimony transcribed in the examining
trial, who shall examine the same and certify
that he has done so and that he finds the testi-
mony of one or more witnesses to be material; and
provided further that a certificate from the Dls-
trlct Clerk, showing that the written testimony
Hon. Geo. H. Sheppard, page 3 o-~1468
of the material witnesses has been filed .wlth
said District Clerk, in accordance with the
preceding paragraph, shall be attached to said
account before such District or County Attorney
shall be entitled to a fee in any felony case
for services performed before an examining court."
Article 1085, C.C.P., Volume 3, Title 16, "Delin-
quent Child", provides:
"A proceeding against a delinquent child
may be begun by an information based upon a
sworn complaint, each of which shall state in
general terms that the acts alleged constitute
such child a delinquent child, and shall con-
form in other respects to the rules governing
prosecutions for misdemeanors begun by infor-
'~mationand complaint. many proceeding so 'bepun
which states uvon the face of the information
that the age of the child is under seventeen
in the case of males and under eighteen years
'inthe case of females shall not be regarded
as charging said child with a felony or a mis-
demeanor but as a dellnauent child, although
such acts alleged would otherwise charge a
felony or a misdemeanor. If such uleading
does not allege the sue of the~accused then
the accused, his or her parent, guardFan,&
torney or next friend, may make and file an
affidavit at any time before announcement of
ready setting up the age of the accused, and
on proof that such age is within the iuvenlle
limits, the case shall be transferred to the
juvenile docket,=, if the court is not a
juvenile court to the prover iuvenile court,
entered on the iuvenile docket and proceeded
with against the accused as a dellnauent
child upon the same information and complaint."
IUnderscoring ours).
, Article 5124, Revised Civil Statutes, 1925, Volume
15, Vernon's, Title 82, "Juveniles" reads as follows:
"The officer conveying any male to any
State training school shall be paid by the
County Inwhich such child was convicted the
actual traveling expenses of such ofTficerand
child, and five dollars additional.
Article 5136, Revised Civil Statutes, 1925, Volum
15, Vernon's, Title 82, supra, provides:
Hon. Geo. H. Sheppard, page 4 o-1468
The court committing any girl to the
Girls' TrainFng School, in addition to the
commitment, shall annex a carefully prepared
transcript of the trial to aid the officials
of the institution in better understanding
and classlfyFng the girl. The court shall
also designate some reputable woman to convey
the glr1 to the institution. The cost of con-
veying any girl committed to this'institution
shall be paid by the cbunty from which she is
commltted, provided that no compensation shall
be allowed beyond the actual and necessary ex-
penses of the party conveying and the gLr1 con-
veyed ."
Article 1020, C.C.P., dealing with fees in the Ex-
amining Court refers to "Sheriffs and Constables serving pro-
cess and attending any examining court in the examlnatlon of
any felony case, etc.," (Undersooring ours).
In the present instance the defendant was a
juvenile, although this fact was not revealed until
the trial. Nevertheless the effect of'the~defendants
age removed the case from felony classification. The
status of the defendant was that of a delinquent chi~ld
under Article 1085, C.C.P.; Andysince even a convic-
tion for an offense which otherwise would be a felony
will not alter the fact that the defendant becomes a
delinquent child and not a felony punishable by death
or confinement in the state penitentiary, the sheriff
is not entitled to mileage fees for going to and re-
turning from-the place of arrest of the minor under
Article 1020, C.C.P.
Several opinions have been written by this Depart-
ment during prior administrations. We wish to quote from a
leading opinion, dated October~7, 1932, by Hon. Bruce W. Bryant,
First Assistant Attorney General, to Mr. M.M. Alexander, County
Auditor, Henrietta, Texas:
"In reply, you are advised that the Comp-
trollerof Public Accounts has not for a long
time-been allowlng fees to district clerks, sher-
iffs, county and district attorneys for services
rendered In felony cases when the defendant was a
juvenile. These officers are entitled-'tocertain
fees.for services rendered In felony cases under
certain conditions. A felony case is one where
the defendant may be sent to the penitentiary.
Now a juvenile cannot be sent to the penitentiary,
Hon. Geo. H. Sheppard, page 5 o-1468
even though he be found guilty of committing
acts which would constitute the commission of
a felony if he were not a juvenile.
"It is for these reasons that the officers
mentioned In your letter cannot receive compensa-
tion from the State for their respective services
incasea of this character, because as heretofore
stated the State only pays such officers where the
defendant Is charged with or convicted of a felony.
This frequently works an undue hard,shipupon these
officers, especially sheriffs and district clerks,
especially where the Indictment does not allege
that the defendant Is, if a male; under the age of
seventeen years,s, if a female, under the age of
eighteen years. However, this is-‘amatter for the
Legislature. It Is elementary that where the
statute prescribes duties to be performed by a
public officerand provldes no compensation for
the performance of that duty, that the officer can-
not collect a fee for the performance of said duty."
[Underscoring ours).
Your attentlon is also called to opinion dated
October.19, 1936, by Scott Gaines, First Assistant Attorney
General, to-the Hon. Eugene J. Wilson,County Attorney, Bay
City, Texas, in which he holds that no fees are allowed of-
ficers for their services under the statutes of this state in
juvenile cases tried and disposed in a county court, except
the fee and expenses allowed the sheriff for conveying a juven-
ile to the institution to which he has been committed.
A proceeding in an Examining Court against a juven-
ile charged with a felony Is not a "felony case within the
purview of Article 1020, C.C.P. any more than it would be in
an action against said juvenile in a regular county court
action.
We must, therefore, answer your question in the
negative.
It is our opinion that a sheriff is not entitled
to mileage fees from~the state under Article 1020, C.C.P.,
where his prisoner was disclosed to be a juvenile upon trial
of the case resulting from Indictment for burglary based upon
testimony given In the examining trial.
In view of our decision it Is unnecessary to answer
your second question.
Hon. Geo. H. Sheppard, page 6 o-1468
Trusting that we have satlsfactorlly complied with
your request, we are
ATTORNEY GENERAL OF TEXAS
By s/Dick Stout
Dick Stout
Assistant
DS:ob:wc
APPROVED OCT 14, 1939
sfiobert 6. Kepke
(Acting) ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman