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                                                       R-14




                              February 21,'1947

        Hon. I. B. Hand             Opinion No. V-37
        Cr,iminalDistrIctAttorney
        Weatherford,,Texas          Re:   Fees due a Constable for trans-
                                          porting a prisoner from the
                                          county in which detained to
                                          the county In which charged,
                                          and related matters.
        Dear Mr. Hand:
               Your revised request for an opinion of this Department
        reads substantlallg as follows:
               "1 . W.W. Allen, who was indicted for forgery
            on three counts at the Spring Term, 1946, session
            of the Grand Jury of Parker County, Texas. He
            was not in custody at the time and was not located
            until later in the same year. Priorto the Fall
            term of Court for 1946, this subject was located
            at Lubbock, Texas, where he was arrested, and at
            that time the constable for Precinct l@o.1, Parker
            County, Texas, traveled to Lubbock and brought
            the prisoner back to Parker County, Texas, where
            he was tried and sentenced to the penitentiary. I
            would like your opinion as to how much the constable
            is entitled to for his fees on this trip.
               "2 . Onice Beauchamp was charged by complaint
           filed in the Justice Court of Precinct No. 1,
           Parker County, Texas. In September, 1946, he was
           indicted by the Grand Jury For the Fall Term,
           1946, for wife and child desertion. Following
           hfs indictment, he was located and arrested in
           Oklahoma City, Oklahoma. The constable of Pre-
           cinct No. 1, Parker County, Texas, traveled to
           Oklahoma City and returned,the prisoner to
           Weatherford, Texas, in Parker County, to answer
           to the indictment. He was released on bond and
           is presently under the supervision of the court,
           making payments to his former wife, but his
           legal status being that he 1s merely free on
           bond. I would like your opinion as to the amount
           of fees to which the constable is entitled, in-
           cluding the amount of mileage to which he is en-
Hon. I. B. Hand, page 2        v-37



    titled for going to Oklahoma City and returning
    with this prisoner.
       "I would appreciate your opinion on the
    above questions, if at all possible, Inasmuch
    as these questions arise frequently in our
    county and also In adjolnlng counties, as I
    have talked with the attorneys for adjoining
    counties, and they have been trying to solve
    the same question,"
       Article 1030, V.A.C.C.P., provides in part as follows:
       "In each county where there have been cast
    at the preceding presidential election less
    than 3000 votes, the sheriff or constable
    shall receive the following fees when the
    charge is a felony:
       "1 . For executing each warrant of arrest
    or capias, or for making arrest without warrant,
    when authorized by law, the sum of one dollar;
    and five cents for each mile actually and neces-
    sarfly traveled in going to place of arrest,
    and for conveying the prisoner or prisoners to
    jail, mileage, as provided for in subdivision 4
    shall be allowed: provided, that in counties
    that have a population of less than forty thou-
    sand inhabitants, as shown by the preceding
    Federal census, the following fees shall apply:
    For executing each warrant of arrest or capias,
    or for making arrest without warrant, when au-
    thorized by law, three dollars and fifteen cents
    for each mile actually and necessarily traveled
    in going to place of arrest, and for conveying
    prisoners to jail, mileage as provided for in
    subdivision 4 shall be allowed: . . S . . . . .
      “4 . For removing a prisoner, for each mile
   going and coming, Including guards and all other
   expenses, when traveling by railroad, ten cents;
   when traveling otherwise than by railroad, fif-
   teen cents; provided, that when more than one pri-
   soner is removed at the same time, in addition
   to the foregoing, he shall only be allowed ten cents
   a mile for each additional prisoner."
       Pursuant to the departmental ruling of the Comptroller's
office, which has been followed by this Department, Article 1030
applies to all counties having a populatfon of less than 40,000
Hon. I. B. Hand,   page 3         v-37



inhabitants according to the preceding Federal Census regard-
less of the number of votes cast at the preceding presidential
election. Parker County has a population of less than 40,000
inhabitants; therefore, Article 1030 is applicable to that
county and its constables as it relates to fees in felony cases.
       It is assumed that the constables of your county are
paid on the fee basis and, therefore, in your first factual
situation, it is the opinion of this Department that the con-
stable referred to would be entitled to 15$ per mile for going
to Lubbock, Texas, the place of arrest, and a total of 304 per
mile for returning said prisoner to jail in Parker County; 15$
for the officer and 15$ for the prisoner for each mile actually
and necessarily traveled when traveling by private conveyance.
(Art. 1030, C.C.P., Binford vs. Robinson, 244 S.W, 807). If
traveling by rail or bus, the constable would be entitled to
lOq!per mile for each mile going and coming and 1.04per mile
for returning said prisoner.
       In your second factual situation, the problem is more
complex. The offense of wife and child desertion is a felony,
the punishment for which is confinement in the penitentiary for
not more than two years, or confinement in the count jail for
not more than six months, or a fine of not less than J25.00 nor
more than $500.00, or punishment by both such fine and impri-
sonment in jail. (Art. 602, V.A.P.C,)
        Article 1019, C.C,P., provides as follows:
       "If the defendant is indicted for a felony
    and upon conviction his punishment is by fine
    or confinement in the county jail, or by both
    such fine and confinement in the county jail
    or convicted of a misdemeanor, no cost shall
    be paid by the State to any officer, All costs
    In such cases should be taxed, assessed and
    collected as in misdemeanor cases."
        Article 1027, V.A.C.C.P., provides in part as fol-
lows:
       "In all cases where a defendant is indicted
    for a felony but under the indictment he may be
    convicted of a misdemeanor or a felony, and the
    punishment which may be assessed is a fine, jail
    sentence or both such fine and imprisonment in
    jail, the State shall pay no fees to any officer,
    except where the defendant is indicted for the
    offense of murder, until the case has been finally
    disposed of in the trial court.... ..*...'
Hon. I. B. Hand,   page 4       v-37



       Inasmuch as your case is one in which the defendant
could receive a fine or jail sentence, no fees attach until
the final disposition of the case in the trial court. If the
defendant is subsequently convicted and his punishment assessed
at a fine or imprisonment in the county jail, all costs shall
be taxed, assessed and collected as in misdemeanor cases.
       The fees allowed peace officers in misdemeanor cases
are set forth in Article 1065, V.A.C.C.P. Section 11 thereof
provides as follows:
       "For each mile he may be compelled to
    travel in executing criminal process and sum-
    moning or attaching witness, seven and one-
    half cents. For traveling in the service of
    process not otherwise provided for, the sum of
    seven and one-half cents for each mile going
    and returning. If two or more persons are men-
    tioned in the same writ, or two or more writs
    in the same case, he shall charge only for the
    distance actually and necessarily traveled in
    the same."
       If the defendant, however, is subsequently convicted
and his punishment assessed at confinement in the State penl-
tentiary, the provisions of Article 1030, supra, would be ap-
plicable and the same fees allowed in your first factual sltu-
ation may be taxed. Needless to say, if the indictment is
subsequently dismissed, the fees may be, after dismissal, taxed
under the provisions of Article 1030, inasmuch as the defend-
ant is under indictment for a felony.
       It is assumed that the constable was not traveling upon
a requlsltion of the Governor. In this connection, it should
be noted that in the absence of a statute allowing a fee for
mileage for those miles traveled in Oklahoma, the constable
would not be entitled to mileage for those miles traveled out-
side the State of Texas. The Officers' Salary Fund can be used
only to pay salaries and other expenses authorized by law and
in the manner prescribed by statute. Article 1030a, V.A.C.C.P,,
was held unconstitutional by this Department in an opinion
numbered 0-4088 dated November 15, 1941, and, therefore, the
controlling statute is Article 1006, V.A.C.C.P., (Brightmen,
Sheriff vs. Sheppard, Comptroller, 59 S.W. 2, 112; Opinion
0-1016) which specifically states:
       "Section 1. The officer or person so com-
    missioned shall receive as compensation the
    actual and necessary traveling expenses upon
    requisition of the Governor to be allowed by
,




    Hon. I. B. Hand, page 5        v-37



        such Governor and to be paid out of the State
        Treasury upon a certificate of the Governor
        reciting the services rendered and the allow-
        ance therefor.
           "Sec. 2.  The Commissioners Court of the
        county where an offense is committed may in its
        discretion, on the request of the Sheriff and
        the recommendation of the District Attorney,
        pay the actual and necessary traveling expenses
        of the officer or person so commissioned out of
        any fund or funds not otherwise pledged."
           A prerequisite for compensation for traveling expenses
    beyond the State line is that the officer be commissioned~bg
    the Governor to return a fugitive from justice, and if 80, he
    may be paid by the Commissioners' Court in its discretion.
    Therefore, It Is the opinion of this Department that the con-
    stable would not be entitled to mileage outside the State of
    Texas if he was not commissioned by the Governor before travel-
    m3.
           In an opinion of this Department, No. O-7471, dated
    December 6, 1946, the subject matter presented in your second
    factual situation was fully discussed, a copy of which is here-
    with enclosed for your information. The pertinent part of this
    opinion is as follows:
           "In all cases where a defendant is indicted
        for a felony, other than murder, but under the
        Indictment he may be convicted of a misdemeanor
        or a felony, and the punishment which may be
        assessed is a fine, jail sentence or both such
        fine and imprisonment in jail, the Sta.temay not
        pay any fee to the magistrate or any peace of-
        ficer for their services rendered in the examining
        trial of any such cases until the same have been
        finally disposed of in the trial court. If the
        defendant in such a case is finally convicted of
        a misdemeanor, or convicted of a felony and the
        punishment assessed is a fine, jail sentence or
        both such fine and imprisonment in jail, such
        officers cannot collect their examining trial
        fees from the State, but such fees are taxed, as-
        sessed and collected as in misdemeanor cases.
        Art. 1019, C.C.P., as amended.
           "i * * * x

           "* * * * * In other words, no fee can be paid
Ron. I. B. Hand, page 6        v-37



    by the State to any of the officers named in
    your request which accrues after indictment in
    a reducible C&Se, except a murder case, while
    8UCh Case is pending in the district court or
    before final disposition thereof in Said court.
    Furthermore, should the defendant be finally
    convicted of a misdemeanor or convicted of a
    felony and the punishment assessed is a fine
    or confinement in the county jail, or by both
    8UCh fine and confinement in the county jail,
    no costs whatever may be paid by the State to
    the officers named."
       In compliance with Section 17, Article 3912e, V.A.C.S.,
the fee above referred to In Article 1030 is payable from the
Officers'.Salary Fund of the county, if the constable is on a
fee basis, and 8UCh 18 assumed.
                          SUMMARY

       1. The fees due and owing a constable of
    Parker County for transporting a prisoner from
    the county in which detained to the county in
    which charged are governed by Article 1030,
    V.A.C.C.P., in felony cases, and Art. 1065, V.A.
    C.C.P., In misdemeanor Cases.
       2. If a defendant indicted for a felony,
    upon conviction, 18 assessed a fine or con-
    finement in the county jail, or both such fine
    and confinement, no COStS shall be paid by a
    county,WhOse county officer8 are compensated
    on a Salary basis, to a constable who is com-
    pensated on a fee basis, but the same Shall
    be taxed as in misdemeanor cases. (Art. 1019,
    V.A.C.C.P.)

       3.  Pursuant to Article 1006, V,A.C.C.P.,
    a constable, to be entitled to fees for mile-
    age traveled outside the State of Texas in a
    felony Case, must be COIIItniSSiOned
                                      by the Gov-
    ernor; in which event the Commissioners' Court
    my, in its diSCretiOn, pay the same.
Hon. I. B. Hand, page   7       v-37



                              Yours very truly,
                            ATTORNEY GENERAL OF TEXAS
                              By s/Burnell Waldrkp
                                   Burnell Waldrep
                                       ASSiStaIlt


BW:djnr:e%:wc
Enclosure

APPROVED FEB. 21, 1947
s/Price Daniel
ATTORNEY GENERAL
Approved Opinion Committee: By B.W.B., Chairman




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