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                                                 The Attorney               General         of Texas
                                                                   December   31,   1982

MARK WYITE
Attorney General

                                            Honorable  Mike Driscoll                           Opinion    No.     w-561
S”preme court BUlllmQ                       Harris County Attorney
P 0 BOX 12548
                                            1001 Preston,   Suite 634                          Re:   Costs and fees            charge     in
Aus,!“. TX. 78711.          2548
5121475-2501                                Houston,  Texas     77002                          misdemeanor cases
Teiel   9101874.1367
Telecopier     5121475.0266                 Dear Mr. Driscoll:

                                                    You have asked for      an interpretation      of article   53.01       of the      Code
1607 Mm      St.. Suite        1400
Dallas. TX. 752014709                       of    Criminal Procedure.       This statute    provides,    in pertinent        part:
2141742-8944
                                                         The following      fees  shall   be allowed   the sheriff,
                                                         or    other    peace    officer    performing     the  same
4824 Alberta        Ave.. Suite       160
                                                         services    in misdemeanor cases.      to be taxed against
E, Paso. TX.        79905-2793
91515333484                                              the defendant     on conviction:

                                                         1.  For executing      each warrant of      arrest     or capias
1220    Dallas     Ave..   Suite   202
                                                         or making arrest      without warrant,      $3.00.
mus,on.     TX.      770026986
7 13mloa666
                                                          . .. .

806    Broadway.       Suble   312                  Your questions    are   as follows:
Lubbock.     TX      79401.3479
806’747.5238
                                                             1.    If  a Texas    Department       of    Public    Safety
                                                         patrolman      issues  a traffic        ticket,      should    an
 4309 N. Tenth. Suite 8                                  arrest     fee be taxed against         the defendant       upon
 McAkn.      TX. 78501.1685                              conviction     of a misdemeanor?
 5121682-4547

                                                               2.  If    question       (1)   is     answered      in the
 200 Ma,” Plaza. SUIIS 400                                affirmative,       should the Texas Department of Public
 San Antomo.   TX. 78205-2797                             Safety,    sheriff,     or precinct    constable    receive the
 5121225-4191                                             arrest    fee?

                                                     Traffic    tickets are issued pursuant    to the following   provisions
                                            of    article    6701d, the Uniform Act Regulating    Traffic  on Highways:

                                                              sec.    147.   Whenever any person      is arrested       for
                                                          any    violation      of  this     Act   punishable      as      a
                                                          misdemeanor,        the   arrested     person      shall       be
                                                          irmaediately     taken before    a magistrate     within      the
                                                          county in which the offense         charged   is alleged        to
                                                          have been committed        and who has jurisdiction            of
Ilrm,r;~l,lu   Mlku        Ilrl:,f.r,I I - l’agc   2   (MW-561)




               such offense   and is nearest   or most accessible
               with reference   to the place where said arrest    is
               made, in any of the following  cases:

                   1.  When a person arrested                    demands an immediate
               appearance  before  a magistrate;

                      2.   When the person             is    arrested      upon   a charge
               of     negligent  homicide;

                      3. When the person    is arrested    upon a charge
               of     driving     while    under    the    influence   of
               intoxicating    liquor   or narcotic   drugs;

                   4.    When the person    is arrested upon a charge
               of failure     to stop in the event of an accident,
               causing    death.   personal   injuries, or damage to
               property;

                   5.  In any other event when the person arrested
               refuses   to give his written   promise to appear in
               court as hereinafter  provided.

                      Notice      to appear        in court;     promise     to appear

                   Sec.    148.      (a)     Whenever a person                is arrested
               for   any violation            of    this      Act punishable             as a
               misdemeanor,        and such person               is not immediately
               taken     before          a     magistrate            as     hereinbefore
               required,      the arresting            officer       shall      prepare      in
               duplicate       written         notice        to     appear        in    court
               containing        the name and address                  of such person,
               the license         number of his vehicle,                    if any.       the
               offense    charged,         and the time and place when and
               where     such       person         shall        appear         in      court.
               Provided,       however,        that     the offense           of speeding
               shall    be the only            offense       making mandatory              the
               issuance     of a written           notice       to appear in court,
               and only       then if        the arrested            person      gives     his
               written    promise to appear in court,                      by signing        in
               duplicate        the written            notice        prepared        by    the
               arresting      officer;        and provided            further,       that it
               shall    not be mandatory              for an officer             to give       a
               written     notice      to appear          in court        to any person
               arrested      for    the offense            of speeding           when such
               person is operating              a vehicle        licensed       in a state
               or country other than the State of Texas or who is
               a resident        of a state          or country          other      than the
               State     of      Texas,       except        as      provided         by    the




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    Honorable    Mike Driscoll       -   Page 3      (MT-561)




                 Nonresident       Violator      Compact      of   1977.    (Emphasis
                 added).

    The specific     language  of    sections       147 and 148(a)       suggests     that  a
    person who is detained     and issued a traffic           ticket   has been arrested.
    Any peace officer     is authorized       to arrest     without   warrant any person
    found violating     any provision       of article      6701d. V.T.C.S.       Sec.   153.
    See also     Code Grim. Proc.      art.     14.01    (a peace officer       may arrest
    without warrant an offender       committing      offense    in his view).

          The Code of     Criminal             Procedure      provides     the   following     with
    respect  to the occurrence    of          an arrest:

                      A person is arrested    when he has been actually
                 placed under restraint     or taken into custody by an
                 officer    or person  executing   a warrant  of arrest,
                 or by an officer      or person    arresting  without   a
                 warrant.

    Art. 15.22.      This definition     of “arrested”  should be used to construe
    article   53.01.     See art.    5429b-2,   12.01; Brown v. Darden,   50 S.W.2d
    261 (Tex.     1932).    An arrest     is complete  when a person’s  liberty   of
    movement is restrained.         Hardinge v. State,  500 S.W.Zd 870 (Tex. Grim.
    App. 1973).

            Although     a detention        for purposes        of issuing     a traffic      ticket
    does not constitute        a custodial        arrest    so that a warrantless         search is
    authorized,      Christian     v. State,        592 S.W.Zd 625, 629 (Tex. Grim. App.
    1980).    the individual        has been placed          under restraint       so that he is
    “arrested”     within article       53.01 of the Code of Criminal Procedure.                   We
    note that the arresting            officer       must see him violate         the law.       Code
    Grim.    Proc.     art.    14.01.        Accord,      Attorney     General     Opinion      C-688
    (1966).      We do not determine             whether      this   “arrest”     constitutes       an
    arrest   for any other purpose.              Thus, if a Department of Public              Safety
    officer     issues      a traffic       ticket,      the arrest      fee    should    be taxed
    against    the defendant      upon conviction          of a misdemeanor.

           You also    wish to know whether          the Texas Department       of Public
    Safety,     the sheriff,       or the precinct      constable   should   receive       the
    arrest    fee collected      from a convicted      defendant   when the ticket        was
    issued by a Department of Public Safety Officer.              Article   53.01 of the
    Code of Criminal Procedure         allocates    the fee to the arresting      officer.
    See Attorney    General Opinions        M-184 (1968) ; O-7298 (1946).       A sheriff
    or constable      who did not issue          the ticket    is not entitled       to the
    arrest   fee.   It should be forwarded         to the Department of Public        Safety
    for appropriate      disposition.




                                                    p.     2058
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        Honorable   Mike Driscoll       -    Page 4    (MW-561)




                                                SUMMARY

                         Article        53.01(l)      of    the   Code     of   Criminal
                     Procedure      is applicable         to misdemeanor cases when
                     an arrest       is made without        a warrant and a traffic
                     ticket     is     issued,     and a fee        of   three   dollars
                     should       be      taxed     against      the     defendant       on
                     conviction.          When a Department          of Public     Safety
                     patrolman      issues     a traffic     ticket    that results      in
                     a conviction          the fee would not go to the local
                     sheriff     or constable.         We do not determine whether
                     a detention          for    purposes     of  issuing     a traffic
                     citation     is an “arrest”         for any other purpose.




                                                             Attorney     General    of   Texas

        JOHN W. FAINTER. JR.
        First Assistant Attorney            General

        RICHARD E. GRAY III
        Executive Assistant       Attorney      General

        Prepared    by Susan L. Garrison
        Assistant    Attorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison,       Chairman
        Jon Bible
        Rick Gilpin
        Patricia  Hinojosa
        Jim Moellinger
        Charles Palmer




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