ORNEP GENEICAL
OF EXAS
Honorable Earl L. Coleman
County Attorney'
DentonCounty Limited by Ex Parte Griffls
Denton, Texas 145 S.W. 2d 192
Dear Sir: Opinion No. O-3353
Re: Fees of a constable orhis deputy
under the facts stated.
Your recent request for an opinion of this department
on the questions as are herein stated has been received.
We quote from your letter as follows:
"We have in this County a constable, duly
elected and qualified, and he has appointed a
deputy Constable to act for him as provided by
law. The deputy Constable has been duly appoint-
ed, such appointment has been confirmed by the
Commissioners Court as provided by law and he
has taken the oath of office. The Constable
and his deputy acting as such have made a large
number of arrests for speeding, both of resl-
dents of this County and State and of residents
of other States which happen to be violating
the speeding law while traveling through said
Constable's precinct. The constable and his
deputy follow the car sought and if they think
the driver is going in excess of the speed
limit they overtake him if possible and then
give him a ticket or summons to appear before
said Justice of the Peace at a specified time
named in said notice and/or summons. The speed-
er then appears voluntarily before the justice
of the peace at, on or before the date required
by said summons and enters a plea of guilty to
said charge andstates that he wants to pay the
fine; or in some instances the Justice of the
peace rides in the car; and carries his com-
plaint forms along with the Constable and his
deputy and when the Constable overtakes the
speeder the complaint is made out, signed and a
plea of guilty taken there on the scene and the
man is fined. Also In some instances the speed-
Honorable Earl L. Coleman, page 2 o-3353
er or accused, states to the Constable that he
might as well go ahead then and dispose of the
case and immediately accompanies the officer to
the justice of the peace's office, enters the
office and enters a plea of guilty to the charge
without a warrant ever being issued.
"There are four questions that I desire your
Department's opinion on, which are as follows:
"1* Where the,Constable or his deputy over-
takes the accused , gives him a summons and the
accused agrees to appear at the time stated,
and does appear on or before said date and en-
ters a plea of guilty, and a warrant doesn't have
to be issued for his arrest, does the original
apprehension and the giving of the ticket con-
stitute an arrest such as to entitle the Constable
or deputy to an arrest fee; and/or mileage; and/
or release fee; and/or committment fee In the
event a committment is issued and.the defendant
is committed to jail in default of payment of
the fine?
"Question No. 2. Where the Justice of the
peace is riding with the constable or his dep-
uty when the accused is overtaken; and a com-
plaint is filed then and there on the scene of
the arrest and the defendant enters a plea of
guilty, does such action constitute that kind of
trial authorized and provided for by the laws of
this state and does the Justice of the peace have
the authority to so accept said plea of guilty
under such circumstances and fine the man?
"Question No, 3. If you answer the above ques-
tion Number 2 in the affirmative and say that
such action is valid, then what fees, if any,
would the Constable or his deputy be entitled to?
"Question No, 4. In the event the Constable
or deputy gives the accused a ticket for speed-
ing and the defendant desires to and does go
right then forthwith to the justice of the peace
at his office and enters a plea of guilty, what
fees would the Constable or his deputy be entitled
to, if any?"
Article 1065, Code of Criminal Procedure, allows the
sheriff or other peace officer performing the same services in
Honorable Earl L. Coleman, page 3 o-3353
misdemeanor cases certain fees for the definite services
named therein, to be taxed against defendant on conviction.
This department held in opinion No. O-317 "that a sher-
iff, constable or deputy of either, may make an arrest with-
out a warrant for the violation of the highway laws of this
State."
It is necessary that we bear in mind the fact that
the fee statutes are strictly construed and fetesby implica-
tion are not permitted. It is a very settled.matter that the
constable, who is compensated on a fee basis,is not entitled
to any fee at all in a misdemeanor case unless a .conviction
is obtained. (Texas Jurisprudence Vol. 34, p. 456; McCalla
v. City of Rockdale, 246 S.W. 654.1
Article 1011, Vernon's Annotated Code of Criminal Pro-
cedure, reads as follows:
"No item of costs shall be taxed for a pur-
ported service which was not performed, or for
a service for which no fee is expressly provid-
ed by law,"
Article 792, Vernon's Annotated Penal Code, reads as fol-
lows:
"In case of any person arrested for violation
of the preceding articles relating to speed of
vehicles, unless such person so arrested shall
demand that he be taken forthwith before a court
of competent jurisdiction for an immediate hear-
ing, the arresting officer shall take the license
number, name and make of the car, the name and
address of the operator or driver thereof, and
notify such operator or driver in writing to ap-
pear before a designated court of competent jur-
isdlction at a time and place to be specified in
such written notice at least five days subsequent
to the date thereof, and upon the promise in
writing of such person to appear at such time and
place, such officer shall forthwith release such
person from custody. Any person wilfully vlolat-
ing such promise, regardless of the disposition
of the charge upon which he was originally arrested,
shall be fined not less than five nor more than
two hundred dollars."
This department held in opinion No. O-693 that 'a charge
of one dollar for release is a proper charge to be taxed as
Honorable Earl L. Coleman, page 4 0 -3353
costs against the defendant when a plea of guilty is entered
and the fine paid immediately after the defendant is notified
of the amount and no commitment 1s made, and the officer who
discharges or"releases a defendant from the force and effect
of a judgment restraining him is entitled to collect the fee
of one dollar for a release."
In answer to your first question you are respectfully
advised that It is the opinion of this department that the
constable or his deputy is entitled to an arrest fee under
the above stated facts, The constable or his deputy would be
entitled to a release fee as above stated, if present when
the defendant pleads guilty and immediately pays his fine and
costs. The constable or his deputy would not be ent~itledto'
any mileage fees. Where a commitment is issued and a defendant
is committed to jail in default of payment of the fine; the
constable or his deputy would be entitled to a commitment fee.
The above mentioned fees for the particular services named are
those as are set out by Article 1065, Code of Criminal Pro-
cedure,
Your second question Is respectfully answered in the
negative. Section 1 of Article 2351 of Vernon's Annotated
Statutes provides:
"Each commissioners court shall:
"1 D Lay off their respective counties into
precincts, not less than four, and not more than
eight, for the election of justices of the peace
and constables, fix the times and places of hold-
ing justices courts, and shall establish places
in such precincts where elections shall be held;
and shall establish justices precincts and justices
cowts for the unorganized counties as provided by
law,
It will be noted that the above mentioned statute charges
the Commissioners' Court with the duty of fixing the times and
places for holding justice courts in each precinct of the county.
Article 63 of the Code of Criminal Procedure provides that
justice courts may sit at any time to try criminal cases over
which they have jurisdiction. Article 916, Code of Crlminal
Procedure, provides:
"All judgments and final orders of the
justice shall be rendered in open court and
entered upon his docket."
Honorable Earl L. Coleman, page 5 o-3353
Article 901, Code of Criminal Procedure, provides:
"Proof as to the offense shall be heard
upon a plea of guilty and the punishment assessed
by the court or jury."
Although justice courts may sit at any time to try
criminal cases over which they have jurisdiction, it is ap-
parent that the Commissioners' Court is charged with the duty
of fixing the place or places for holding justice courts in
both civil and criminal cases. We do not think that the a-
bove mentioned procedure as stated In questlon No. 2 was ever
contemplated by the Legislature.
As we have answered question No. 2 in the negative, it
is not necessary to answer your third question.
In answer to your fourth question, you are respectful-
ly advised that the constable or his deputy would be entitled
to the same fees as mentioned in answer to your first question.
We are enclosing herewith copies of opinions Nos.
O-1189, O-693 (Conference Opinion No. 3058)) and O-963.
Trusting that the foregoing fully answers your inquiry,
we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Ardell Williams
Ardell Williams
Assistant
AW:GO:wc
Enclosure
APPROW APR 16, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEYGENERAL
Approved Opinion Committee By s/BwB Chairman
Untitled Texas Attorney General Opinion
Combined Opinion