HonorableJames?i?Strawn OpinionNo. O-2003
CountyAttorney Re: Is an officerentitledto
wi1iacycounty half costs in mlademeenor
Raymondville,
Texas odes where the dependentis
com+ed~~. In justiceco+s
or Is he only entitledto
simh fees when defendantis
convictedIn the county'court?
(2) Who, if anyone,Is entitled
to half costs for the com-
., mitmentand releaseof a
prisonerwhen there is only
one jail in the countyand
that jail is in charge of
the sheriff?
Dear Sir:
Pour requestfor an opinicmof this departmenton the above
statedquestionshas been received.
We want to thank you for the able brief sub$ii&edwith ywir ?.nquiry
which..haa~been
very helpful In passingupon your questlons.~.
We quote from your brieB aa follows:
"In this countythe queatiqnhes been rained that the
counQ.ia not liable for half-.cpsta providedfor in ar!icle
1055Gode of CriminalProcedurewhere the defendantis
cogVf&tedand commitedfrom,a jtiticecourt. It~has'been
conteded that since the articlesays 'Andto psy such
half gf costs,the CountyClerkshall issuehis warrant
on we CountyTreasurer,in favor of such officerto be
paid out of the Road and Bridge Fund or other flmds
not otherviseappropriated.' that it vaa the intention
of the legislatureto onlf providefees for convictions
in the County Court. It is.argwd that if the officer~
vaa entitledto half fees from the justicecourt, that
the justicewould Leaus the warrant as he has all of the
papers that show the amount,offees due and~is acquainted
with.allthe facts."
Honorable Jam&'W. Strawn, page 2 (0-2003)
Article 1055, Code of Criminal Procedure, as amended
by House El11 No. 205, Acts of 1939, 46th~Legislature, reads
.as follows:
"The county shall not be 1iabIe to the offiaer
and witness having costs in a misdemeanor case where
defendantpays his fine and costs.~ The'hounty .&all
be liable for one-half of the fees of the officers of
the Co~tit,~when the defendant falls to pay his fine
and lays his fine out in the county jail or discharges
the same by means of working such fine out on the
county roads or on any county project. And to pay
such half of costs, the County Clerk shall issue
his warrant on the Gounty Treasurer in favor of such
officer to be paid out of the Road and Bridge Fund
or other -fundsnot otherwise appropriated."
Article 1055, supra, does not in any way make any dis-
tinction between the county or justice court. It would seem,
to be exactly contrary to the intention of the Legislature
to allow'the fees in the county court and'not inthe justice
court. We believe that it was the Intention of the'Leg.isla-
ture to provide some compensation for officers where they
secure convictions against defendants who are unable to pays
their fines and costs In misdemeanor cases but staisfy or
discharge the same by working such fines out on the county
road~or on any~county project or lay the same out In the,
county jail. The issuing of the warrants by the county clerk
for half costs as provided by Article 1055, supra, is a min-
isterial duty of the county clerk and said provision In no
way restricts the application of said article to cases tried
in the county court.
Article 3748 of the Revised Civil Statutes of Texas,
1895, read as follows:
"Whenever a convict has been committed to jail
in default of payment of fine and costs adjudged against
him, has satisfied such fine and cost in full by labor
in the workhouse, on the county farm, on the public
roads of the county orupon any public works of the
county, said county in whleh said conviction washad
shall be liable to each~officer and witness having
costs In the case against said~convict for only one-
half of such costs, and the county judge of said county
shall issue his warrant upon the county treauurer in
favor of~each officer and witness fcrrone7half of'all
such legal costs as may'have been taxed up against
said convict, not to include commissions, and the same
. -
Honorable James W. Strawn, page 3 (o-2003)
shall.be p&fi'out of~:the~~oioad~~~dI-Bridge
Fund of
the county or out of any other county funds not other-
wise appropriated."
The court, in the case of Fears v. Ellis County, 49
S.W. 139, In construing Article 3742, supra, among other
things, held In effect that the county attorney was entitled
to half fees for convictions in both county and.justice
courts.
In answer to your first question, you are ,respectfully
advised that it is the opinion of this department that any
officer who is entitled to half costs under Article 1055, Code
of Criminal Procedure, supra, is entitled to such costs regard-
less of whether the case is tried in the county or justice
court.
Referring to your second question, we quote from Texas
Jurisprudence, Vol. 38, pp. 431, 432 and 433 as follows:
"The ancient officer of sheriff and constable
are recognized by our Constitution and statutes. From
the statutory provisions it appears that process of all
the courts is addressed to the sheriff of the county
and to the constable of the precinct, and that the
power and duty of executing process are imposed equally
on both. Also, sheriffs, constables and marshals are
peace officers, and, as such, are authorized to execute
criminal process and to make arrests without warrant in
proper cases. . . .
"A constable is an administrative officer elected
to serve in a precinct In which a justice court func-
tions, having functions analagous to those of the
sheriff. It Is his duty to execute and return accord-
ing to law all process, warrants and precepts to him.
directed and delivered by any lawful officer, attend
upon all justice courts held in his precinct and per-
form all such other duties as may be required of him
by law. He is authorized to execute process issuing
out of the county and district courts as well as of
the justice court of his precinct, and this authority
extends to process delivered to him by the plaintiff
in the writ or by his attorney, as well as to process
handed to him for execution by the clerk of the court
or sheriff."
Article 6885, Vernon's Annotated Civil Statutes, reads
as follows:
Honorable James W. Strawn, page 4 (O-2003)
"Each constable shall execute and return accord-
ing to law all process, warrants and precepts to him
directed and delivered by any lawful officer, attend
all justice courts held in his precinct and perform
all such other duties as may be required of him by
law."
Article 787, 789, 788, 795, 796, 797, 783 and Article
1067, Code of.CrimLnal Procedure reads as follows,:
YArt. 787. Pay or jail.
When a judgment has been rendered against a defen-
dant for a pecuniary fine, if he is present, he shall
be lmprosioned In jail until discharged as provided by
law. A certified copy of such judgment shall be suffi-
cient to authorize such imprisonment.
"Art. 789. Capias shall recite what.
Where such caplas issues, It shall state the
rendition and amount of the judgment and the amount
unpaid thereon, and command the sheriff to take the
defendant and place him In jail until the amount
due upon such judgment and the further costs of col-
lecting the same are paid, or until the defendant is
otherwise legally discharged.
"Art. 788. If defendant is absent.
When a pecuniary fine hasbeen adjudged against
a defendant not present, a capias shall forthwith be
issued for his arrest. The sheriff shall execute the
same by placing the defendant in jail.
"Art. 795. Authority for imprisonment.
When, by the judgment of the court, a defendant
is to be imprisoned in j,ail,a certified copy of such
judgment shall be sufficient authority for the sheriff
to place such defendant In jail.
“Art o 796. Capias for imprisonment.
A capias Issued for the arrest and'commltment of
one convicted of a misdemeanor, the penalty of which
or any part thereof is imprisonment in jail, shall
recite the judgment and command the sheriff to place
the defendant in jail, to remain the length of time
therein fixed; and this writ shall be sufficient to
authorize the sheriff to place such defendant In jail.
"Art. 797. Discharge of defendant.
A defendant who has remained in jail the length
of time required by the judgment shall be discharged.
.
Honorable James W. Strawn, page 5,(C)-2003)
The sheriff shall return the copy of the judgment,
or the capias under which ~the defendantwas imprisoned,
to the proper court, stating how it was executed.
"Art. 783. As to fine.
When the defendant is only,finedthe judgment
shall be that the State of~Texa~sr$i?overof the-Tdefen-
dant the amount of such fine and.all.costs of the,.-pro-
secutlon, and that the,defendant, .if:'present,
be ~com-
mltted to jail until such fine ~andz~costs
are paid; or
if the defendant be not present.:,that-acapias..,forth-
with issue, commanding thesheriff;to,arrestthe defen-
dant and commit hlm~to jall,~untll~such~fine~and,costs
are paid; also, that.executionmay 3ssue against the
property of such defendant forthe~ amount-of such ,fine
and,costs.
"Art. 1067. Fees of~peade';:officers.
Constables, marshals orother'peace off&k-who
execute process and perform :se+ces. four,lust$ces’ln
criminal actions, shall receivethe same feesallowed
to sheriffs for the same services.
Article 1065, Cod.e~of;Crlminal'-,Proaduj?e(reads
in
part as follows:
"The following fees shall be~..allowed:the
sheriff, or
other pem officer performing~the.:sameserclces in mis-
demeanor cases, to be taxedi,againstthe defendanton
conviction.
II
. . .
“5. par each.commitment ,or release,,~.one
dollar."
The statutes prescribing:~fees~:,for"~cert8ln.6fficers
,.
for definite services performed.authorisesthose officers
who are compensated on a ,fee,,bas'isto ,.recelve:a
,deflnite
fee for a certain servLce,performed and Lwhenany officer
performs any such duty he is entitled to the specific fee
provided for such service. ;,' i ~.
By virtue 'of the foregoing statutes..you are respect-
fully.advised that it is'the~~lnlonof this department that
a constable has the same 1egal"power and authority to execute
a commitment or release, as a sheriff, when the release or
commitment is directed or addressed to the sheriff,of the
county and to the constable of the precinct. Therefore, the
officer executing the commitment or'reIeaee'would be entitled
to the fee provided by law for executing such commitment or
release.
Honorable James W. Straw& page~6 (o-2003)
Trusting that the foregoing fully answers your Inquiries,
we remain'
Yours very truly,
ATTORNEXOENEFUL OF TEXAS
By
Ardell Williams
Assistant
AW:jm