Juwary l2, 1939
woaw.?.so%tos
county .4ttonaey
‘>r~ge, Texas
Dear Sir: ~pia&nl No. 3-22
lb:, Fees of County *xttoraeys.
Justicea af tlm Peace, Shoriffa,
in misdom*Mor Csse8.
Tour mpst for sm opi+a OL tb abow. dated Ceeern-
kr 20, 1938. addressed to Attorney Genersl rjilliam lv.cCraa has
beea nf8rr.d to this Caputrnbnt for attention and reply. ha
qnoto your Iettsr as follows:
“Pla8ae giw me your opinion in the fol-
lowtag qwatioas:
‘(1) In miadonu~or cases w&r+ a Jurtice
of thm Peace issws l warrant of armat and aub-
poena for witaomes in a err aad phcca them
in the haads of th sheriff or coastable for ser-
vice and before the sheriff or constable meets
ths accused or the witnrsaes, is ths officer tn-
titled to charge for fees of arrest aad summoning
the witnears or not?
‘(2) lf a peison convicted of l mfsdemeaaor
aad the Juatico of the Aace issws a eommitiat to
the sheriff and the sheriff does not place the con-
victed parson in jaU, but lata him go on a promise
to day the fiue and coats in the futura and doer +y
it later, is the sheriff entitled to eoilect from the
convicted person the fee for commitment and re-
leaw7
‘(3) .Yhea ths sheriff mleraea a coavietod
person as nuntioncd in the abow paragraph (2)
and later collectes from the convicted person
enough mosey to eowr Wfizm, trial fee and attorney
Hon. :i;. P. Sexton, January 12, !939, page 2.
fee aud perhaps part of the eheriff’r fee,
sad then refuses to turn in tbe sum of fine,
trial fee and attorney’s fee until be caa
collect the whole of alI fine md costs, .hes
he the IegsI right.to withhold such fine. trial
fee snd sttorwy fee until M cae collect his
fee. Is l sh e r iffentttled to a fee for cwnmit-
ment sd nlerse whether orn ot the convicted
person pays fhu?
‘I will appreciate your opiaioa on the
abow qwstioas as the sheriff and justices of
the Peace of this county do not seem to agree
regarding then uutters,~
.
h answer te yeur first inquiry.the rtetutes prescribe
coaditioaed upon the
certain fees to be prod county officers,
performMu of certa~ acts.
“Foe as a term lxpnssiw of reaauwra-
tioa for public officials meum the remuneratian
or compensation or wages allowed by law ia
return for their servlees.’ (Vcltmsa v. State,
217 3.3. 378.)
To entitle aa efficer to a fee in any case, he must per-
form some act to e8rn the same:
-To entitle sa officer to receiw fees or
canmissioas* * l he must have performed the
services for which compensation hro been specified..
(34 Tcx. Jur.. Sec. 113, p. 522).
The qwstioa nsoives itself down to one point. la there
such a performance of service rendered by the sheriff as to en-
title him to a fee I
Arrest on a criminai charge hw been defined as “the
appnhendixkg or detaining of tha person in order to be forthcoming
to snstwr an sIleged or suspected crime.g (15 &iv. JL?).
Article 239 of the 1925 Texas Cede of Crimina.i i?rocedure
reeds as follows:
“A person is said to be arrested when be has
actually been placed under restmint or t&en
into custody by the officer or person executing
ths warrant of errest.~
Texas Jurisprudence, Volume 34, paragraph Li3. sad cases
there cited, states that: ‘To entitle an officer to receiw feer or
commissions, the receipt thereof must haw bsen provided for and
the smount fixed by law; snd he must haw performed the services
for which compensation has bean specified..
HO& :V. .?. Sexton, Jaauary l2, 1939. page 3
It i8 trw that our statutes provide that in certain
cases mmofficiol may be entitled to a fee, own though not
perfonniag any act or service in maid eeae. This is true
of l h u nty Atto r a sy , who is entitled to a fee on a plea of
guilty in the Justice Court without personally king present,
but our statutes proscribing fees for public officials are
strictly construed in fever of tbe state, ceenty or muaici~ality,
md wless a fee is mpecificaily provided for neae eaa be al-
lewd. and the officer cannot be heard to complain if the
Legislature bad been more liberai toward other officials than
toward him in the matter of compensation for his office, mm
he is presumed to know this at the time he sought the office.
1 would like to call your attention further to .~.rticle
1Oll of the 1925 Code of Crirniaei lrocedure, which reads as
fouow‘r
-No itemo f costs shall b trrPd for a
purported service which was not petionned
or for s service for which no feo is expressly
provided by~law.m
You are advised that it is the oaiaioa af this Gapart-
meat that fear allowd to officers by statutes arc allowed as
cmnpenaation for menicer lctumliy rendered and unlearn the
services ai sctuall7 rendered. the officer is entitled to no
fee. Therefore, where an sccueed voluntarily appears and
entershis plea without having h&d the warrant of arrest served
on him by the sheriff, the sheriff would not be entitled to a fee
for serving the ~wsrrsnt. The same would be tnm as to serving
a subpoena; the sheriff would not be entitled to a fee unless be
had actuaily merwd the ssme.
In reference to your second inquiry. w are of the opia-
ion that our mamwr to the firsr question amswrs the second, for
the reason that unlearn the sheriff actually eammitted and released
the prisoaer, he would not be entitled to AZIYfee.
In answer to your third inquiry. we wish to refer you to
Article 317 of the ?enal Code of Texam of 1325, which reeds as fol-
lowa:
-Aay offiar. jailer. or guard having the
legal custody of a person accused or convicted
of a misdemeanor who wilfully permits such
person to escape or to be rescued slull bs fined
BOt exceeding one thousand dollars.’
Wan. Yi. P. Sexton. January 12.1939, page 4
The Court has maid In the came of Lucky vs. Ztate,
14 Tee. 400:
*A sheriff who permits s person convicted
of misdememor to go at large, when such primo=r
has ken committed to jail until the fixta aad costs
are paid is guFlty of permitting such prisolur to
eaeape.. .’
Artiels 322 of tha Fenal Code also raadm:
‘Amy officer, jailer, or guard who hamthe
legsl custody of a person accumed or convicted
of a. misdemesaer who negligently perrr:itm much
person to eseaps or to be rcscwd shti be fiaed
net orceediang film hundred dollars.’
We also wnt to call your stteation to .+rticla 324 of
the sauu Code which provides:
-Any s&eriff or other officer who wilfully
refuses or fails Cram wglect to axeate 3ay
lawful process in him haads requiring t&e arrest
of I) p er so n
lceumed of a misdemeanor whereby
tbe lceuud escapes, or who wilfuily refuses to
receiw into s jail under him charge or to re-
ceiw in him custody mny person lawfully com-
mitted to his cumtody on such accusation, shall
be fined not exceeding fin hundred doLlarm."
A peace officer has ao authority to allow a prisoner
time within which to pay a fiae amsesmed against him by the Court.
Article 787 of tbe 1925 Code of Criminal Sroeedura of Texas pro-
vfde a:
“.Ahen a judgrr-nt &as ken rendered against
a defendant for a pecuniary fk#. if he im premeat,
he shall be irnprimoned ia jail uatfl discharged as
provided by law. A certified copy of such judgment
shall be sufficient to authori= muchimprisoaxnent.’
Article 788 of the muna Code of Crivniwi Proudun,
reds:
“lv hen a peeuatary fiae ham been adjudged
againat a defendant aot present. 0 capiam mball
forthwith be issued for him arrest. The sheriff
shall execute tbe same by placieg the defendant
in jail.’
Hon. iv. P. .%mt&, Jamuy 12, 1939, paae 5
article 789 of tha Code of Criminal ?rocedure reads
*. folloaa:
Q%er e lwh c a p k aiaa~a, it s
h a ll
a ta ts
th 8r*ndition 84 amaunt o fth ejudgment a nd
th a amountunp a id
th e r eo n.
a ndeo ¶nmr Pth
d e
sheriff to tab tha defendant and p&a him in
j&I until the amountdue upateuch Judgment and
the furtlmr Costa of collecting the aame are
paid, or until the defendant is otherwise legally
diachargad:
If an officer fatla to comply with the order of tha court
rsnteacin~ a prisoner to pay a fin8 or go to jail, and permitting
the priaonar to 90 at large. than the officer would be guiity of
permittinq the priaaner to laupa or refusing to receiw raid
priaornr aa set out ia tba Article8 of the Penal Code above.
It has lonp hen held by tbia Cepartment that whara
only. part of a fina and coata is eollactad, that tha money col-
lected should firat go to the paying of coats and the balance, if
any. to the amount of the fine, and where thera ia not enoqh
collected to pay all of the coats, that the money collected should
ba proratad between the dffcara having a fee according to the
amount of their fee and one officer baa no priority owr another:
Article 949 of the 1925 Coda of Criminal Procedure pro-
vide a:
‘ldoney collected by en officer upon reeqnizances,
bail bonda and other oblig&iona raeovered upon ia
tha name of tha State under any provision 3f this
Code, and all fines, forfeitures, judgment8 and
jury feea collected under any provision jf this
Code, shall forthwith ba paid ova? by tha officers
collecting the mama to the County Treasurer of the
proper county, after first deducting therefrom the
leg& fees and commiaaiona for collecting the same.”
In view of the above atatiates, it is our qdnion that the
money collected by the sheriff shall forth with be paid owr to
t.ka proper partiaa. Namely, paymant of tha coat to the proper
officiala antitlad thareto. and tha belance to the County Trerrunr,
end in the event there ia not enough to pay all tha fine and coats,
then the money shall be prorated aa set out above.
In answer to the last sentenca in your third paragraph, yoo
are adviaed that this Ceparflrent has held a conferenca opinion,
dated January 11, 1939, written by Aaaiatant Atiorrjr General den-
jamin aoodall, addreaaed to Hcaorabla C. Burtt ?otWr. County At-
torney of San Patricia County, Sinton, Texaa, that Chapter 483 of
the General and Special Laws of the Forty-Fifth Lagialature of
Texra, same being House Sill NO. 727 3f the Regular 3asaion. aad
Hon. V*. P. Sexton, janwry It, 1949, page 4
carried forward as .rrticla 1055 ia Vernon’s -otatad
Coda of Crimiaml Procedure, pocket supptment, is
void and uaconatituthnal. as king in eontrawntion af
s4ction 33 of .xrucia III of tha ConatitutioB of tha Shta
of Texas; md that Artiela 1055. Co& ol Criminal ~Procedure,
1925, not having heen repealed,a nd the Mandatory act being
usconatitutional and entirely void, is still tha law of Texas,
uwi sll fee officara an aubjeet to ite provision.
Article 1355, Code of Criminal Procedure. 1925,
tha Act sought to ba emended, and the Act which this Le-
partmant holds to be the law, now readr:
‘Articla 1055. Half Coat -:fficara. Tha
county shall ha liahla to each officer and wit-
ness hwin# coata in a misdemeanor wee for
only SW-h8lf thereef whem tha defendant has
ntiafbd tba &a and coats adjudged against
hfminfullby~borin~wor~ou~,on~
county farm. on the public roads. or upon my
public works of the county, and to pay such
oaa-half of such legal coats as may have been
so taxed, not including commiasiana. The
County Judge rball iaaw his vrrrrant upon the
County Treraurer in favor of the proper party.
a nd th e lw shall ti paid out of the road and
bridge fund. or other fuada not otherwise ap-
propriatrd.”
In view of tin above provision of tha 181~.you are advised
that if the sheriff actually committed and released the primmer,
and the priaowr aatiafied the fine end costs adjudged against him
in full hy labor iat he workhouse. on the county farm, on the pub-
lic roads, or upon any public works of the county, tha sheriff
would ba entitled to --half of the regular fees to be paid by the
cou.nqq otberrtae, the sheriff would not be entitled to my fees
until and unlaaa the &fen&at paid the fina aad coats adjudged
against him. In wither instance would ha W entitlad to any fee
unlearn he actually committed aad releraed the prisoner, f~or the
reasons set out abow.
Trusting that this sufficiently amwere your inquiry, 1 am
Yours wry truly.
ATTORNZY GENEiGL CF TZ:,XAS
BY a/ h. C. ikartin
Assistant
ti’/..:FG:vmb
APTR,3YED
ATT3RNEY CZNERAL ffF TEXi:3