Untitled Texas Attorney General Opinion

IQ&I 31, 1988

Honorable Mike Driscoll Opinion No. JR-880
Harris County Attorney
1001 Preston, Suite 634 Re: Authority of a commis-
Houston, Texas 77002 sioners court to set fees
for the execution of criminal
warrants by a sheriff or
constable (RQ-1060)
Dear Mr. Driscoll:

You have requested an opinion from this office on the
following question:

May commissioners courts set fees for the
execution of criminal warrants by the sheriff
and constable?

In 1981, the legislature enacted article 3926a,
V.T.C.S. (since codified as section 118.131 of the Local
Government Code), reading:

(a) The commissioners, court of each
county may set reasonable fees to be charged
for services by the offices of sheriffs and
constables.

(b) A commissioners court may not set
fees higher than is necessary to pay the
expenses of providing the services.

Acts 1981, 67th Leg., ch. 379, 51, at 1001.

Subsection 2(a) of the bill that enacted article
3926a contained the following provision: "Fees provided
for sheriffs and constables in other laws in conflict with
the provisions of this Act are repealed to the extent they
conflict with this Act." Id. at 52. But the bill also
stated, in section 3(b):

Until a commissioners court prescribes
different fees pursuant to Article 3926a,
Revised Civil Statutes of Texas, 1925, the

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Honorable Mike Driscoll - Page 2 (Jh-880)

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fees charged by a sheriff or constable are
those provided by the law in effect on
August 31, 1981. Fees charged by a sheriff -.
or constable for services performed before
the effective date of this Act are governed
by the law in effect at the time the
services were performed.

Therefore, by the express terms of the bill enacting
article 3926a, if laws governing the collection of
sheriff's fees in criminal cases were in conflict with the
new law, they were repealed to the extent of the conflict,
but onlv Insofar as a oarticular commissioners court
prescribed different fees. They were to remain in effect
in those counties where no different fees were prescribed.

At the time article 3926a was enacted, articles
53.01, 53.02 and 53.04 of the Code of Criminal Procedure
specified particular charges (applicable throughout the
state) to be made for services performed by peace officers
in misdemeanor cases. '~In 1985, the legislature first
amended article 53.01, m Acts 1985, 69th Leg., ch. 239,
99, at 1183, and then, in a Wonsubstantive revision,"
relocated the substance of articles 53.01 and 53.04 (prior
to amendment) to chapter 102 of the Code of Criminal
Procedure as article 102.001 without expressly repealin
the two articles from which the provisions were taken. 9
m Acts 1985, 69th Leg., ch. 269 at 1300. Articles 53.01
and 53.04 were eventually repealed in 1987 by the act that
conformed article 102.001 to the previous 1985 amendments.
@.g Acts 1987, 70th Leg., ch. 167, 54.01(b), at 2647.

In 1987, as part of a nonsubstantive recodification,
article 3926a was incorporated into the Local Government
Code as section 118.131 thereof with no significant change
in language. m Acts 1987, 70th Leg., ch. 149, at 1397,
1699, 2548. The same legislature had previously amended
article 3926a. m Acts 1987, 70th Leg., ch. 143, at 640.
Although the earlier changes were not expressly carried
forward by the nonsubstantive revision that transferred
the statute to the Local Government Code, they are to be
read as a part of the encoded provision. See Gov't Code

1. Article 53.02 of the Code of Criminal Procedure
was repealed by the 69th Legislature. Acts 1985, 69th
Leg., ch. 269, 55, at 1307.

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 Honorable Mike Driscoll - Page 3 (-880)

§311.031(c) (repeal of article by code does not affect
amendment of the article by the same legislature). None
of these changes affect our answer.

In order to answer your question, we need not deter-
mine the relationship between the general provisions of
the 1981 law giving power to commissioners courts (former
article 3926a, V.T.C.S., now section 118.131 of the Local
Government Code) and the specific provisions (now found in
article 102.001) of the Code of Criminal Procedure which
were in force at the time former article 3926a was
enacted. We need not do so because we have concluded that
the provisions now found in section 118.131 of the Local
Government Code cannot constitutionally reach fees of
sheriffs or constables assessed as costs in misdemeanor
criminal cases.

In Texas, costs in misdemeanor criminal cases are
assessed as part of the punishment. J& carte Carson, 159
S.W.2d 126 (Tex. Crim. App.~ 1942): Ex carte Mann, 46 S.W.
828 (Tex. Crim. App. 1898). See also Attorney General
Opinion JM-443 (1986). a United States v. Palmer, 809
F.2d 1504 (11th Cir. 1987) (holding imposition of costs as
P punishment to be constitutional). A law allowing
different costs to be assessed in different counties for
the same penal offense would have the effect of allowing
the penalty for state-defined crimes to vary from county
to county and would violate both "due process@B and "equal
protectionl' constitutional rights. U.S. Const., 5th
Amend., 14th Amend.: Tex. Const., art. I 553, 19; Ex oarte
!Z;son, sunrg. See Memet v. State 642 S.W.2d 518 (Tex.
. - Houston [14th Dist.] 1982, bet. ref'd). S also
132 S.W.Zd 408 (Tex. Crim. App.eT939);
W# e, 8 S.W.2d 134 (Tex. Crim. App. 1928).

If we could reasonably construe article 3926a and its
later expression, section 118.131 of the Local Government
Code, as not intended to embrace criminal matters, we
would do so in order to avoid suggesting unconstitu-
tionality, but there is nothing on the face of either of
them. to indicate that the scope was intended to be
anything less than all-embracing. Article 3926a was
couched in language that would normally be considered
inclusive of all Hservices by the offices of sheriffs and
constables," and, although its application to fees charged
in criminal cases was not discussed, it was so considered
in Attorney General Opinion JM-193 (1984). Nothing now
found in section 118;131 of the Local Government Code
would alter that view. The retention of articles 53.01

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and 53.04 of the Code of Criminal Procedure (and the later
incorporation of article 102.001 in Title 2 thereof)
respecting such fees indicates no intention to limit the
eventual scope of article 3926a or section 118.131 because
such statutes, if "in conflict" with article 3926a (01
section 118.131), were intended ~to have continuing effect
only where a commissioners court failed to use its
"article 3926a" powers. Such statutes were intended to be
of no effect in counties fully employing such authority.

A different argument about its intended scope could
be made, perhaps, if the legislative history of article
3926a (or its successor) suggested a legislative intent
that the statute apply only to civil proceedings, but the
available legislative history shows affirmatively that it
was &ended to embrace fees in criminal proceedings as
well as in civil proceedings. The Bill Analysis regarding
House Bill No. 1617 (the 1981 bill enacting former article
3926a), prepared for the House Committee on Security and
Sanctions of the 67th Legislature, states:

BACKGROUND:
At present, the legislature sets the fees
charged
. . for the delivery of civil and
& papers by a sheriff or constable,
and provides one cost for every county in
the state. The legislature also decides
the merits of such issues as 'attempted
service. ) The commissioners court of each
county does not have the discretion of
setting m fees, even though the cost of
serving papers varies from county to county.

This Bill would place the responsibility
of setting fees charged by sheriffs and
constables under the local control of the
various commissioners courts. These fees
would not be set higher than the actual cost
of the services provided. (Emphasis added.)

a Code Crim. Proc. art. 102.009 (formerly article 53.09)
(criminal costs in class C misdemeanors set by commis-
sioners court in populous counties).

We are compelled to conclude that article 3926a (now
section 118.131) was intended, j&er alia, to control the

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Honorable Mike Driscoll - Page 5 (X4-880)

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setting of fees for sheriffs and constables in criminal
proceedings, and that insofar as it or its successor
attempts to do so, it is unconstitutional. gx oarte
Carson, i5i!&sa.
However, a statute found to be unconstitutional in
part need not fall in its entirety if its provisions are
not so connected in subject matter, so interdependent,
or otherwise so bound together that it can be presumed
the legislature would have passed the law devoid of its
unconstitutional aspect. $8.9 Countv School Trustees of
Orana eCout v.
School District No. 8, 153 S.W.2ds434 (Tex. 1941). In its
original configuration, the 1981 bill enacting article
3926a reouired commissioners courts to set sheriff's and
constable's fees. As the bill analysis shows, however, a
subcommittee amendment changed the phrase, "shall set
reasonable fees," to read, Iv= set reasonable fees."
Bill Analysis to H.B. No. 1617, prepared for House
Committee on Security and Sanctions, 67th Leg. (1981).
Thus, the legislature did not command that commissioners
courts set all fees for sheriffs and constables, nor
command that if any particular fees were set by the
commissioners court, all others also must be set by that
body. It follows that the act was passed with the
understanding (though not the expectation, perhaps) that
every county might decline to set such fees in criminal
cases.

In other words, the legislature exhibited an intent
to enact former article 3926a even if the statute were
never to be applied to the fees of sheriffs and constables
in criminal cases. The 1985 retention of the recodified
provisions now found in article 102.001 of the Code of
Criminal Procedure showed a legislative willingness and
expectation that those provisions would apply where former
article 3926a (for whatever reason) was not utilized. We
do not believe section 118.131, the successor statute,
must be declared unconstitutional in its entirety merely
because its application to fees in misdemeanor criminal
cases would unconstitutionally violate *'due process" and
"equal rights" provisions. Its application to civil
matters is unaffected.

Inasmuch as section 118.131 may not be constitu-
tionally read to allow commissioners courts to set fees
for the execution of criminal warrants in misdemeanor
cases by the sheriff or constable, any potential conflict
that would have otherwise existed between section 118.131

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Honorable Mike Driscoll - Page 6 (JM-880)

and statutes purporting to govern the fees of sheriffs and
constables in such criminal cases is eliminated, The
general repealer of Vonflicting statutes" found in the --.
bill that enacted former article 3926a will not apply,
therefore, and the provisions of article 102.001 of the
Code of Criminal Procedure will control the fees to be
charged in misdemeanor cases.

We are aware that article 102.001 was amended in 1987
to limit its applicability to counties with less than two
million population, and that article 102.011 of the Code
of Criminal Procedure was enacted to specify different
costs for larger counties. $&= Acts 1987, 70th Deg., ch.
821, at 5695. For reasons already explained, however,
charges for the services of peace officers assessed as
costs in misdemeanor criminal prosecutions for state-
defined offenses must be uniform throughout the state to
escape condemnation on constitutional grounds. Inasmuch
as the only purpose of the 1987 act was to accomplish an
unconstitutional objective, i.e., to specify~ different
cost charges in misdemeanor criminal cases to be
applicable for the same state-defined offense in different
counties, depending on population, it cannot be given
effect, and article 102.001 remains applicable in all
counties.

Your request for an opinion, we realize, is not
limited to misdemeanor situations. It asks about "fees
for the execution of criminal warrants," not merely about
fees in misdemeanor cases.

Although the result is the same, the analysis with
respect to sheriff's and constable's fees in felony cases
is somewhat different. Former Code of Criminal Procedure
articles 1018, 1029, and 1030 governed fees in felony
cases, but were expressly repealed pro forma by the "non-
substantive" 1985 act that rearranged the provisions
previously found in articles 53.01 and 53.04 of the Code
of Criminal Procedure. See Acts 1985, 69th Deg., ch. 269,
at 1300, 1307.

In felony cases, fees and costs were formerly paid
initially by the state pursuant to articles 1029 and 1030,
but article 1018 of the code made their reuavment a charge
against convicted defendants. (Articles 1029 and 1030 I

imposed different fees for sheriffs and constables in
felony cases, depending on (1) the number of votes cast in
presidential elections in the county and ('2) the popula-
tion of the county.) However, such repayments have been

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 Honorable Mike Driscoll - Page 7 (JM-880)

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unnecessary since 1949, when it became statutorily
forbidden for the state or a county to pay a fee to an
officer compensated on a salary basis. .&=Acts 1949,
51st Leg., ch. 257, 51, at 474.

Despite a design to operate in a way declared above
to be unconstitutional for OOegual protection" and "due
process'* reasons in misdemeanor cases, these "felony" fee
statutes were never in nari materia with article 3926a or
section 118.131. They ware rendered inoperative by a
statute enacted before former article 3926a became law.
The revisor's note discussing the repeal of articles 1029,
1030, and 1018 by the 1985 %onsubstantive" revisory act
is found following article 104.002 of the Code of Criminal
Procedure. It explains how the former Code of Criminal
Procedure statutes were rendered inapplicable by the
adoption of article XVI, section 61, of the Texas
Constitution abolishing the "fee system" for compensatin
officers, and by the enactment of former article 3912e, ?
V.T.C.S., forbidding payment by the state of fees to local
officers (both of which occurred prior to the enactment in
1981 of former article 3926a):

Article 3912e [section 31 expressly states
that neither the state nor a county may pay
a fee or commission to a district or county
officer compensated on a salary basis.
Article XVI, section 61 of the Texas
Constitution requires . . . sheriffs and
constables to be paid on a salary basis.
Since all officers . . . are or habited from
receivina fees from the state. Ehe nrovision
of article 1018 reouj&.na that the fees
paid bv the state are a harae aaai th
defendant are meaninalessc (Smphasi?a~ded.~

We therefore advise that commissioners courts may not
set fees for the execution of criminal warrants by the
sheriff or constable in either misdemeanor or felony

2. Article 3912e was repealed by Acts 1987, 70th
Legislature, chapter 149, section 49(l) and recodified as
part of the Local Government Code, principally at chapter
154. The prohibition against paying fees to salaried
officers is now codified at section 154.002 of the Local
Government Code.

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Honorable Mike Driscoll - Page 8 (JM-880)

cases. To the extent that Attorney General Opinion JM-193
(1984) suggests otherwise, it should not be followed.

SUMMARY
Commissioners courts may not set fees
for the execution of criminal warrants by
the sheriff or constable in either mis-
demeanor or felony cases. Such fees in
misdemeanor. cases involving state criminal
statutes must be uniform statewide, and
such fees in felony cases are no longer
collected.

Iv-2j~y&

JIM MATTOX
Attorney General of Texas

MARYEELLER
First Assistant Attorney General

mu MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General

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