8
/                                         .....
                 OFFICE   OF   THE   ATTORNEY     GENERAL     OF   TEXAS
                                        AUSTIN
    GROVERSELLERS
    ATTORNEY
           GENERAL




    Honorable Earlon Martin
    County Attorcwy
    leoogdochea County
    Nacogdocher, Tours

    Dar   sir:




                                                             an otficer lmfully
                                                            owed vlth mthorlty
                                                            *    4rre8tr valve
                                                             W8e88lMlAt    Of th8
                                                              sting fee l.nthe ffx-
                                                              Of CO8t8 to be paid
                                                             the deiendaat upon
                                                            8 being  found guilty?

                                                    te reUue8tlng *n opinion
                                                    aaptioned 8Ubj8Ct8, ho8 been
                                                  iOR and reply. Your quer-




                            lty are rccepted in criminal
                            toa of the CoUnty Court. There-
                         like to have an ldvi8Ory opinion or
                         your department a8 to the validity
          of a juagarentpredicated upon e plea of guilty en-
          tered during vaCatlOU.n

          Qu88tlOn IiO.2:
                  "Can a eheriff, ooast@ble,   Dspaz’tJlWlt Ot Pub-
          lic  Safety   off laer, %‘tS68 L%qUOr Control Board In-
          BpXtOr,     or any other officer lavfUlly endoved vith
          authority to nrke Wre8te          VaiV8    the a8cie88Plsnt
                                                                    of
                                                                 549

Honorable liarlonMartin, pege 2



     the =r-ting   fee in the firil3gOf CO8t8 to be
     paId by the defendant upon hi8 being found guiltyTm

          In reply to yOW flr8t question, ve Iwe eaclo8Ing
this deprartment*sopinion No. O-3090, vhlch WI believe an-
8Ver8 thin QUe8tiOn  in the negative.

           In reply to Your 8ecoud quartion, ve quote from thi8
d8flrtmQt'S OPiQiOn NO. O-768,   wherein ve held that a State
Bighvay PbtrObbR   18 Wltithd  t0 no brr88tlag fee:

             “YOU   me   r88peCtfIlllyadvl8ed thbt thl8 E4-
     portent    ha8 repeatedly ruled tbat b con8table     or
     Other   Q8bCS Officer 18 not entitled to aharge,
    collect, or rcoept fee8 unlerr he actually per-
    formed the 8ervIce8 set out in the 8UtUte.             If
    the constable does not We      the wre8t,    nor     thQ
    commitmnt nor the rele88e, he certainly oould not
    Chbrg8, Collect, or 8CCept 8 fee for doing 80. A
    rtate highway  p8trolPan receiver 8 Mliry from the
    strte of Telar for hi8 8ervice8, and there        ir    no
    statutory buthorltg la thlr rtste vhereby a rtbte
    highvay patrolwm may oharge, collect or raaept l
    f8e frOIUa defendant.    t’h8 88-y   8 8tbtt    highV8y
    QbtrO~n    receive8 from the State of Teu8 18 the
    only compensrtlon to which he I8 entitled to re-
    ceive for performtag hi8 duti88 in Prre8ting          the
    defendmat clurged with ral8depsanOr.

         "You are therefore, rk8peutfully edvl8ed t&t
    if a state hlghvay patrolman 8rre8t8 a defendant iu
    a ai8demeanor aEi8eand bring8 the defendmt before
    the ju8tlce of the peace end the defeud8nt plea8
    guilty and Is a88e888d a iIRe, the jU8tiCe of the
    peace ahodd not tax an rrre8t See againrt the de-
    fendant.

          "For example, if a state highvsy patrolnmn
    wrest8 a defendant for violbtlon of a Qi8demNtkor
    8tatute and brings the defendant before the ju8tice
    of the peace a8 outlined by law, end the defendant
    enter8 his plea of guilty before the ju8tIce of the
    paace  aad 18 888888ed 8 fine Of One dollU  and
    CO8t8, tbn thi8 1s the follovlng amount vueh the
    defendant should be required to PrY iu di8oMrge
    of hi8 fine and cO8te, to-vit:
    aonorable Earlon hartin, page 3



              "One dollar ilne; five dollars fee for the
         county attoPQey; four dollars, trial fee - making
         a total of ten dollars."

              Tams Liquor Control Board Inspectors receive a aal-
    erg from the State and are likewise entitled to no arresting
    fee.

              In re@rd to sheriff8 and COQ8table8, your attention
    is directed to the follovlng statutory QrOVisiOn8. Article
    102, Vernon'8 Annotated Pen81 Code provides:

              "Any county officer or any dlstrlat attorney
         to whom fees or Cost8 bre rlloved by l&v vho 8hall
         fall to charge UQ the fees or cost8 thbt may be
         due under exl8tltp,fJv8,or who Shall remit 8ny fee
         that lsaybe due under the law, or vho shall fall
         to mbke the report reclulredby lav, or who 8hll
         p8y hi deputy, clerk OP..b88i8kQt 8 1888 8UPI thn
         specified in hi8 worn statement, or reoelve  bek
         a8 8 rebate any part of the compen8atlon alloved
         such deputy, clerk or sselstant, 8hall be f,lnednot
         le88 than tventy-fiVe nor more than five hundred
         dollars. &oh act forbidden by thl8 artiale 18 8
          reparbte offense."

              The Legislature, by Act8 1939, special Lavu, mge
    608, Section 1, provided for salaries for county officer8  in
    COMti88 containing a population of tventy thou8and (20,000)
    lnbabltants or more and provided for an Offlcers~ galrry Fund.
    This Aot appea~a 88 Article 3912e, Vernon’s Annotat8d Civil
    Statutes. Section 5 provides:
              "It &all be the duty of 811 officers to cbrge
        and collect in the mbnner 8uthorlGed by law all
                             vhich Bpe permitted by hV to
        fee8 and ColIlmi88iOll8
        be RsSes8ed and collected for all officibl 8erViCe
        performed by them. A8 and when suck fee8 bre aol-
        lected they shall be deposited in the OffiCeP8'
        &laPy Fund, or fund8 provided in this Act. IQ
        event the ComDli88iOneP8'Court find8 that the fail-
        upe to collect any fee or eommla8lon Vb8 due to
        neglect on the part of the officer charged vith
        the responsibility of collecting a&IQB,the amount
        ol suCh fee or comml8aloo shall be deducted from




i
I


    Honorable Harlan &wti.n, page 4



         the U-y    Of 8Wh Officer. Before say 8uah de-
         duction 18 made, the C0m1118810QeP8'Court 8ha11
         fuPal8h such officer vlth an ltemlced 8t8tement
         of the uncollected fee8 with which hi8 bcoou.nt18
         to be charged, and sba11 notify ouch officer of
         the tlm and place for 8 hearing on ~nm, to de-
         termine whether such officer v&8 guilty of negll-
         gence, vhich tiPlafOP hearing shrll b8 et leb8t
         t8Q   days   8UbDeQUWAt   t0   the   t&t8    cd   QOtia8.           thh88
         en officer is charged by lav with the re8pon8lbll-
         ity Of 001leCtillgfees, the COlari88iOWP8' COUPt
         Shall Rot IQ any event ppke ray deductions IPom
         the authorlaed 8alery of 8uch officer."

               You are accordingly advised that prior to the p88-
    age of Article 3912e, the arresting officer v&8 entitled to col-
    lect md  retain  his fee md fbilure 80 to do va8 EWle 8 pen81
    offense . SubseQuent t0 the enactment Of Article 39128, the a~-
    re8ting ofilcer receiver 8 UrlRry in lieu of 811 feel, co3n-
    ml88ims ok compenabtlon to which he would othsrvlse be en-
    titled. Under the provlslon8 of thi8 Act, the officer 18 Cbrg-
    ed vlth the duty of charging and co11ecting hi8 fee a8 before
    and paying it into the OfflceP8' SaWy    Fund. Should the oom-
    mi88loner8~ court find that the fbllure to Collect bny fee or
    corairrlon ~88 due to neglect on the prt of the offloer ah8rg-
    ed vlth the re8poQ8lbility of co1lecting I&m, the bmount of
    such fee or commirrlon 8he11 be deduated from hi8 ~l@ry after
    notice and hearing had thereon 88 provided by the 8tatute.
                ‘PrU8tiIl&   thi8 fti1y 8n8YeP8 yOUP iQQUiPi88, v8 aPe
                                                           Very      truly     yOUr8

                                                 ATTORREXGXWRRAL
                                                               OF TRXAR

                                                              /t.      2.    f&--L     &---A-k
                                                     BY
                                                               H. T. Bob Donahue
                                                                       A88i8tbQt


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