,.~.
Hon. Stanley Timmons opinion No. O-2104
County Attorney Fte: Overloading - Constables -
Hsrrison.County Fees - Arrests - Release;
Marshall, Texas
Deer Sir:
We have received end carefully considered your request
?,or ti opinion upon the following questions:
"Question No. 1: When a local constable.1~
working with, acaompanying,.~.and assisting a:repre-~
"mh&~A. 2n- -zJz*A%&ti %! 'A%%-' -al& vf-e&h ill-
spector.of. the..llcense adweight division of the.
Department of Public~Safety of the,S%ate~'of Texas,
and such constable and-inspeator acting together
apprehend stop, and weigh a truck under the.provi-
slons of &tide 827a,-Section 5 of the..Penal Code
which.reads as'.+ollgws: ~
U'No commercial motor vehicle; truck tractor,
trailer or semi-trailer shall be operate 8 on ttie
public &Lghway outsiae.the city~limlts of an in-
corporated,city or towa.with a loaa.exceedl+ TOO0
pounds or anysuch vehicle.or train or,.combihatidn
of vehicles; t.3dn0 motor vehicle, commercial,
truck .trailer, or semi-trailer, having a rester
weight than 600 pounds per inch width of $.re ii upon
.any wheel concentrated upon the surface of the
bighway shall be operated on'the.public highway ,out-
side the limits of an.incorporated citg' or town;
provided ~,however+ that the provisions of this sec-
tion shall notbecome effective until'the first day
of January, ~1932."
"And at that time the lnspecto>. for the.llcense
&a weight division of the Department of Public Safety
of the State of Texas, aids not place the defendant
'under arrest ana'take before .a magistrate inst&nter,
but in lieu of.that, gives to the defendant in the case
~.a ticket in which the defendant promises to appear be-
fore some particular court and thereafter, and prior to
Hon. Stanley Timmons, Page 2 (C-2104)
the date on which the defendant agrees. to appear,
the constable has prepared a complaint, warrant,
and subpoena, serving the warrant on the defendant’.
when he makes the appearance and prior to a trial
of the consideration, is he, the constable, ehtitl-
ed to the arrest fee of two dollars together with
a charge for subpoena service of any person or per-
sons actually subpoenaed?
“Question No. .2: If a constable is accompany-
ing.. and wa#Lng with, and assisting an employee or’
inspector of the license and weight division of the
Department of Public Safety of the state of Texas, ana
upon apprehension by such inspector-of the lLcen%e
and wefght division of the Department of Public Safe-
ty and the Constable, a driver of a truck is charged
for the violation oft Article 827a of the Penti code
wherein the person charged ,is given a notice t.9 ap-
pear, *a does, as to same, make his appearance at a
subsequent date as agreed upon at the %ims of his ap-
prehension and makes ti plea’ qf guilty before the
court;’ the Inspector for the license. and weight dlvi-
sion of the Bepartment of Public Safety being absent,
lri th8 aonstable who wasp with, and assisting the in-
,$pector, entitled to colle&Lon of the fine and cost
+nd a release fee when acceptlag such fine and cost
and releasing %he defendant from the terms of the
judgmept assessed?
*Question ;Nor 3: If ~a constable is accompany-
ing, wcWd.ng with and assisting an inspector of the
license and weight division of the Department of Pub-
,lice Safety and upon apprehension by such inspector
and constable a driver of a truck is charged for the
violation of &tide 827a of the Penal Code of the
State of Texas wherein the person there charged is
given a notice to appear but prefers to then and ,there
enter his plea before a proper magistrate and is sac-
eompanied by the constable to the office of the court
end makes his plea and .Is assessea~ a money judgment end
the fine and cost Is then end there ,paId to the consta-
ble who receipts the defendants therefor is the con-
stable entitled to a release fee of one A01la.r upon the
pagznt of such fine and release by him ,of the defend-
Article 1065 Vernon’s Annotated Texas Code of Criminal
Procedure, reads as fo 3 lows:
Hon. Stanley Timmons, Paged‘3 (O-2104)
“The following fees shall be :allmded the’
sheriff, or other peace dfficer performing .the ‘.
same .services. ih misdemeanor cases, :to -;be taxed
against the defendazit oneeonvictlon:
: ‘11. For .executing each, war&d of a&&d or
caplas; or. ~making arrest ~w’ithout warrant; ~two: dol-
lars. :
“2 . For s&oning each witne’ss,. se’vsnt&five
cents.
lljs F~or“serving.
’ any,.writ n& .otherwise. pro-:
viaea for, one a0um.
“4 . For takikg &a approving each bona, &a
returting .the same to the court :house, when neces-
sary,. one a0im emfifty cents.
~, ‘.:.
115....’For, each~ &ommitment nor r.elkase, q.e. dol-,
la.
,.. “6. Jury. fee,. in, each case where a jury is
actually summoned, one doliar.
‘76. For attending .a prisoner on habeas ‘corpus,
wheh: such ~prlsoner upon~ a hesi%ng, has been. remend-
ed to, custody, or. h,eld to ‘bails, for each day’s at-
tendance, four a0ixar.9. ,~~
“8. For conqeying a wit&& attached .b$ &Lm to
any court: out of .his county,; four doUar.s: f,or~ each
day or fraationsl part ~thereof~, am&his. actual neces-
stiy expenses by the. nearest practicabl~e .public con-
“veyance,, the amount to be:stated by said~ officer,’
under oath and’approved by the :juage of the court-,
from which the attachment Lssued.
“9. For conveylug .a pr&soner afi‘er ~convictloh
to the county .jail, for~.~each mile going and co’ming,
by the nearest practicable route gy private comey-
ante, ten :eents a tile, or: by railway, seven. and one-
half cents a mile.
~. lllO. ~For conveying a prisoner arrested Cm a
warrant or capias,: issued from another county to %he
court or jail, oft the counQ f mm which then’process
was issued, for each mile traveled going and combng,
by the nearest practicable route, twelve and one-
half cents.
Hon. Stanley Timmons, Page 4 (O-2104)
"11. .For each mile he may be compelled to
travel in executing criminal process ana summoning
or attaching witness, seven and one-half cents.
For traveling in the service of process not other-
wise provided for the sum of seven and one-half
cents for each miie going end returning. If two
or more persons are mentioned in the same writ
or two or more writs in the same case, he shad
charge only for the distance actqally at@ neces-
sarily traveled in the samertt
Article 1011, Vernon's Annotated Texas Code of Crimi-
_ nal Procedure Drovides that "no item of costs shall be taxed for
a purported service which was not performed or for a service
for which no fee is expressly provided for;I'
This department has repeatedly'ruled that constables
and sheriffs are not entitled to fees except for Lega& services
performed as outlined by the fee statutes. See opinions Nos.
O-106 O-b93 o-768, o-963, 0-1160 and many other opinions of
this aepartdnt.
Article 827a, Section 5, Vernon's Annotated Texas Penal
code, reads as follows:
"Noncommercial motor vehicle, truck-tractor,
trailer or semi-trailer shall be operated on the
public highway. OUtSm of ~the.limits of ti incor-
porated city or town with a load exceeding seven
thousand (7000) pounds on any such vehicle or
train or combination of Vehicles; SXY3 no motor
vehicle, commercial motor vahfcle, truck-tractor,
trailer or semi-trailer .having 2 greater weight
than six hundred (600) pounds per inch width of
tire upon any wheel concentrated upon the surface
df the highway shall be operated on the public
highways outside of the limits of an incorporated
city or town; provided, however, that the provi~-
sions of this section shall not become effective
until the first day of January, 1932."
Article 239, Vernon's hnQtat8d Texas Code of Criminal
Procedure, reads as follows:
'IA person is said to be arrested when he has
been actually placed under restraint or taken into
custody by the officer or -person exeauting the war-
rant of arrest."~
Hon. Stanley Timmons, Page,~'5 (O-21$),
Article 217, Veruonts *dated .~. Texas Code of Criminal
Procedure, r&as as follo~s:~ ;
"In each c&ie~~&&mrated in *Iii& chapter;
the person making the arrests shal$ immediately
take the 'persod &rrGst&d'b&fbre the magist?'ate
who may have ordered the arrest, OI! before 'the
nearest magistrate where the arrest was made
without & order."
Article 319; Vernonts Am&ate&Texas Penal code, reads
as follows:
11&y officer, jailer, k.&ard having the.
legal custody ~0f.a person~accused 02, donvicted
of a misdeme~~.r~who wilftily,permits such per-
son to escape or to.be r:escced shaQ be fined .1,
not &CeediIIg 0~8,thOu?&d dQii~&."
Article 3?2, Vernont,s.Ann+ated Taxas..Penal code, reads
" 'as foUlotiS:
",Any officer,,jailer, or guard who bas,the
legal Oust0ay,O~~a~p&+&on.adcused or'~d6nVicted.
of a misderqeanor who negligently permits such
.per.son ,to escape or,,to be rescued shall be fined
not' ~excee+qg five &indred flolI@ir~.'~*Y .,: .
'Articl&91&',~ Ve&oD.ts.Anziotated Texa&:-Code '6s Criminal
Proceduri3, 'reads as~'foXl&is:
.ltAll judgments <'end‘f$i$l 'b&&i 'of‘the ~j~us<,'
tice shall be ~+endered'.id open: cour~~~~d'ent~red
upon his docke%,Ft" ':~ ,, .:
.Artitile 917, Vernon's Annotate? Texas 'cdd8 Of Criminal
Procedure ; reads as follass:
"il'iheR jd&elit :,in. c&e cjf:&&iCtion~~in &I
~~C$minal action'be?ori,.a ',justs&e oft the .peace,,
shall be that the .&at& of Texas recover of the,
defendant the fine and costs, and that the clefenq-
and renaa in custody of the sheriff until the
fine and costs a3%Daid:
to colle~ct the same." ( '
,Aqlzicle 920,'yernonts Annotated Texas C$e,of Criminal
Procedure, reads.as,follows:
Hon. Stanley Timmons; Page 6 (O-2104)
“A defendant placed in jail on account of
failure to pay the fine and costs can be dis-
charged on habeas corpus by showing:
“1. That he is tod poor to pay the fine and
costs, ana
“2. That he has remained in jail a sufficient
length of time to satisfy the fine and costs, at
the rate of three dollars for each day.
“But the defendant shall, in no case under
this article, be dlschWg8d until he has been
imprisoned at least ten days. and a justice of
the peace may discharge the Defendant upon his
showing the same cause, by application to such
justice; and when such,application is ~granted,
the justice shall note the same on his docket." '~
Article 792,~Vemion's Annotated Texas Penal Code, reads
as follows:
"In case: of *y~pers& arrested for violation
of the-preceding artlcl.as relating ta speed of Ve-
hicles, unless such,person so arrested shall demand
that he be taken forthwith before a court of compe-
tent jurisdicticin for'an Immediate hearirig ~the
arresting officer shall take the license number,
name ana 1nak8 of the car, the~name and address of
the operator or driver thereof and rdtify such
operator or cirivt3? in writing $0 appear before a
designated court of competent~jurusaiction at a time
and place to be specifled in such written notice at
least five days subsequent to the date thereof,~and
upon the promise in writing of such person to appear
at such time and place; such 'officer shall forthwith
release such person from custody; Any person wilfully
violating such promise, regardless of the disposition
of the charge upon which he was originally arrested,
shall be fined not less than five nor more than two
hundred a0ilars.~~
Article 792, supra, authorizes the "giving of a ticket
or written notice"~ by the arresting officer to a person arrested
for violation of penal articles preceding Article 792, relating
to the speed of motor vehicles, and provides a penalty for the
violation of the offenderts promise to appear. This article
does not apply to Article 827a, Section 5, supra. There~is no
Hon. Stanley Timons, Page 7 (,C+gm4) ~,, ...., :- : ,. :. ,:::
statti$oory aiitborlty for the i,ssuanc,e of $&kets.~or written no-
tices:bqi-' ar,rf#$@;:?f$i+*:& 'in d~~r~o+a~ng':?2&es., :
., .,',
Opinion No,. 0-1189,of this department holds that
-~-bnly whe+ 'th8, facts s&w. that' t&=&f&~a$-, is, in, the., actual
and lentu'cu+dy of. ti,jonst@i$~ .at~thejtitn?‘he'plgads-guiItjr
and~piC~ys~hls 'fihe~~is .th8.-donstable entStled't6 a Felease fee.
Th$Sl.opinio,q.fur$her &$s~:$hat,,w+~n the aefendant malls his
fine; v$wt,arily appear~s:;,~~ne:~r;appe~s Yn,the Leaal Oust0ay
of'snother' off$&&'the: aons'table.$s not .@titleCi t+a-:r+ease
fee. ye :enc+ose a copg.,of. said, opinic$ .:.~:-,.~
.. :
." .,
Op'iaOn &0:.$-14!j% .bf.thls' ae&rtmetit. h&ds,;:&m6ng
other thlhgs; that constables. aid .sheriffs.d¬ have the.,
authority to make arrests without warrants for violatldns of
the.&oad limi.t,l.aw..i *id opinion,pont+ins~,a~full discussion
:’of ~+iaz~@?tt8r._qy8 enc$se,herewith &,~ppy-,of said opinion.
i Opidibljl No.'.O&$3 af this,~aep~tmel;t,h~~as among
o%her&h&g-s that a~&5tistabl& is 'n~'t entitled- t&'&&e@
j :~fee-~fo~-read& a-wari&it. of~,drrest;tb;.a.:mot'orist:~~$6r S&84-
.._
" ;ihg.Wheh:tlie npt'ortst.\tias~ 3n~%he 'custOdfr..:bfi.arid'~~der.'.arS8~st
~rby a .Higtiay ~ih+natl.: sara opinioli also:~ol~S~th~& a' CPA-
',stable ?0+a not be~.~ entltl~ed to. fee's' :fo* : serving a" subpYo8n.a
~'L+js? he ~~tu@ll&ar&leg'~ly~
., ,_ . ,. &$ecut~ed:,$h~.,
~_. same'. : ;" ~~,
fin &nsGer 'tdyoti ?i;;'&quetioti Jrou &e r&peMully
advised as,follows: ..,
./../._. .~ ~:.
1 ,-, ~, .., .' .L. :
.: .%" it,. is a ~su8st$i Gf, .ya& a;' & &&he+. & & ,th8
License aa Weights Inspector. arrested the truck driver ate
the .time he StOpp8d~bi~ and gave him a ticket. If th,e.truck
driver was arrestea.by.the License end lrfeights 'Itispector,j.t
.was the duty of thaLicense aa Weights +s.p,ector,td carry
'-the truck'driver b6fofe the nearest.'magistr&t& and U&&duty
could not be performed by the giping~ of, a '(ticketU,wauthorized
~by law:'.If'.h&did not arrest'the.truck~tiiv&ti.'.there.wCis no
'~ aecessity orl-auifti ?e$son for his atteeted effort to require
the truck driver to appear in court at a later dat,e,upon the
purported authority of a "ticket." If the truck dH.vtir was
arrested and released without authority of law, ha wZou&dper-
haps occupy the same status as "an.escaped prisoner."~. abut re-
gardless of whether or not the truckdriver was an "escaped
prisoner", if the constable executed a valid warrant of. &rest
legally issued-by the Justice of the Peace by arresting said
truck driver at a later date he would be entitled to an arrest
fee and his proper mileage. If he executed valid subpoenas
for witnesses in the case lawfully issued by the Justice of the
Peace he would be entitled to his fees and mileage for execut-
ing such process.
Hon. Stanley Timmons, page 8
In answer Taoquestion No. 2,' you are rez&ctfUl&
advised that it is' the opinion of this department that:
1. The constable would hot be entitled to any .fees
unless h8 actually performed &$& services. He would hot
be entitled to -any pay for any Alled. services performed.
2. He would'not be entitled to fan errest.'fee be-
cause the facts .stated do not show a lawful arrest by theme
constable; indeed, the facts indicate that if an arrest was
made that it.was made by the License and Weights Inspector.
If the constable made the arrest it would be an illegal arrest
without warrant for which no~fees could be given to the con-
stable.
3. The question as to whether'or not the constable.
vr0ula be entitled to a release fee would depend upon the facts
in the case. If the Justice of the Peace render?d his jucig-
ment as outlined by Artlcl~f~17, C.,C.P. supra;~ and.$;ehis
Bent stated that the.d naant was 0 remain in t 0m0aq
of the constable until the fin nd costs wepe Daiq and if the
defenclant,then'in the actual c&.taody of~the constable and in
the .legal custody of the ,constable by virtue of~the authority
of said judgment paid his fine and costs, the constable then
would be entitlei to a release fee for discharging 'the'akfena-
ant from the force and effect of a jUdgUI8nt restraining him.
In answer to your third question, Wi tie of'&8 kpin-
ion that paragraph 3 of our answer to your second question en-
~swers your third question also.
APPROVH)SOL 23, 1940 Yoixrs very truly
/s/~ Gerald C.~ Mann
ATTORNEP GENERALOF TEXAS . ATTORNEY
GEN- OFTEXAS
APPROVED:OPINIONCOMMITTE By /s/ Wm. J. Fanning
BY: BWB, CHAIRMAN Wm:J. Fanning, Assistant
WJR AW:wb
ENCLOSURE