Hon. H. A. Hodges
County Auditor
Williamson County
Georgetown, Texas
Dear Sir: iEini,onNo. O-1445
: When the sheriff makes a trip
to serve a process, either
civil or criminal, and fails
to locate the person.on whom
the process is to be served,
is he entitled to the &! per
mile as set out in Article
3899(b)?
Your request for our opinion on the above stated question has
been received by this department.
Article 3899(b), kevised Civil Statutes, regarding certain
officers who receive a salary as compensation for their
services, reads in part as follows,:
II
....The Commissioners' Court of the county of the sheriff's
residence may, upon the written and sworn application of such
officer, stating the necessity therefor, allow one or more
automobiles to be used by the Sheriff in the discharge of
official business, which, if purchased by the county shall be
bought in the manner prescribed by law for the purchase of
supplies and paid for out of the general fund of the county
and they shall be reported and paid in the same manner as
herein provided for other expenses.
"Where the automobile or automobiles are owned by the Sheriff
or his Deputies, they shall be allowed four (44) cents for
each mile traveled in the discharge of official.business, which
sum shall cover all expenses of the_maintenance, depreciation
and operation of such automobile. such mileage shall be re-
ported and paid in the same manner prescribed-for other allow-
able expenses under the provisions of this section. No auto-
mobile shall be allowed for any Deput Sheriff except those
-regularly employed in outside work. f tshall be the duty of
the County Auditor, if any, otherwise.the commissioners'
court, to check the speedometer reading of each of safd-
automobiles, owned by. the county once each month and to keep a
Hon. H. A. Hodges, Page 2, O-1445
public record thereof; no automobile owned by the county
shall be used for any private purpose...."
Our statutes specifically provide certain-fees for mileage
that a sheriff is entitled to receive when serving both civil
and criminal process when such service is actually made;
however, this department has repeatedly held that a sheriff
cannot legally charge fees for mileage traveled in attempting
to serve civil or criminal process, meaning those fees pro-
vided by statute for serving such process.
Referring to Article 3899, Section (b), supra, we quote from
an opinion written by Hon. Joe J. Alsup, Assistant Attorney
General, addressed to Hon. J. A. Belger, County Auditor,
Travis County, Austin, Texas, January 13, 1936, as follows:
"Under the terms of said law we think it is evident that such
mileage must be considered as an expense and not as a fee.
A fee is somewhat a remuneration for services rendered while
the four (44) cents per mile spoken of herein is mere in the
form of remuneration for money expended. We, therefore,
conclude that the same could in no wise be~.considereda fee."
You are respectfully advised that it is the opinion of this
department that when a sheriff is acting in good faith and
receives a salary as compensation for his services he should
be paid the sum of four (44) cents for each mile traveled
by automobile while attempting to serve either civil or
criminal process upon the person whom the process is to be
served although ,the sheriff fails to serve such process,
provided the automobile is owned by the sheriff..
Trusting that the foregoing answers your inquiry, we remain
Very truly yours
ATTORNEY GENERAL OF TEXAS
s/ Ardell Williams,
By .',
Ardell Williams
AW:AW/cg A~ssistant
APPRovm SEPTEMBER 23, 1939
s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee
BY m, Chairman