Honorable Tom L. Hartley
Criminal District,Attorney
Edinburg, .Texas

Dear Sir:                              Opinion Number O-2437
                                       Rer Sheriffs and constables -- over-
                                           loading -- arrests without warrant--
                                            Fees of office.

               Your request for opinion upon the    following questionax

9.   Does a constable or sheriff have any right under the law to mane an ar-
rest for a violation of the 7,000 pound load limit law. without a warrant of
 arrest?

“2.  Does P constable or sheriff have any right, under the law, to make an
arrest for a violation of the 7,000 pound load limit law, without a warrant
of arrest,vhen such officer is accompanied by, and working in conjunction
with, a wsight inspector of the Department of Public Safety?

“3.  Where an arrest is made; without a warrant, by a constable or a shpriff,
Bither by himself, or in company with a weight inspector of the Department of
Public Safety, of a tru&driver, for violation of the 7,000 pound load limit
law, and the driver pleads guilty, is the constable or sheriff, as the case
may be, entitled to anyfee for the arrest? Under these circumstances, is
such officer entitled to afee for the release of the defendant, or to any
other fee?

“4.  When a driver   of a truok is arrested, without a warrant, for a violation
Qf the 7,000,pound   load limit law, and pleads guilty and offers to pay his
fine, what are the   legal costs and the amount thereof that oan%e assessed
him by the Justioe   of the Peace for such fine?"

has been received and carefully considered by this department.

                Opinion No. O-1454 of this department holds, among other
things, that constables and sheriffs do not have the right to make arrests
without wurrants for violations of the load limit law. Said opinion con-
taina a full discussion of said matter and we enclose herewith a copy of
that opinion.

                Article 1011, Code of Criminal Procedure of Texas, provides
that "no item of costs shall be taxed for a purported servios which U%W not
performed, or for a service for which no fee is expressly provided hr."
Honorable Tom L. Hartly, Page 2 (O-2437)


           This department has repeatedly ruled that constables and sheriffs
are not entitled to fees except for services performed, as outlined by the
fee statutes. See opinions numbers O-106, O-693, O-766, O-963, O-1160 and
many others of this department.

           We quote from opinion No. O-693 of this department as followsr

"A constable is not entitled to a fee of $2.00 (Artiole 1065, Code of Grim-
inal Procedure) for reading a warrant of errest to a motoris for speeding
when the motorist is in the custody of and under arrest by a Highway Patrol-
man. An officer who discharges or releases a defendant from the force and
effect of a judgment restraining him is entitled to collect the fee of $1.00
for a release."

           Opinion No. O-1120 of this department holds that it is the duty of
the representatives of the mights and Measures Department to file a complaint
against the offender when he weighs a truck and finds that it is overloaded.
This opinion also holds that where the Weights and Measures officer arrests
the defendant and weighs his truck and is accompanied by a constable end uses
the constable's car that the constable is not entitled to any costs or mile-
age fees. We enclose herewith a copy of said opinion.

           Opinion No. O-1189 of this department holds that only where the
facts show that the defendant is in the actual and legal custody of a consta-
ble at the time he pleads gu6lty and pays his fine is the constable entitled
to a release fee. This opinion further holds that when the defendant mails
his fine, voluntarily appears alone or appears in the legal custody of another
officer, the constable is entitled to no release fee. We enclose a copy of
that opinion. We also enclose a copy of Opinion No. O-963 of this department
which contains a full discussion of several questions similar to your questions.

           Your questions are answered as folJows:

           Question No. 1~ No.
           Question NoJo.
                        2: No.
           Question No. 3r 'The constable or sheriff would not be entitled to
an arremt fee because the same would be an illegal arrest for which no fees
are allowed by law. The constable or sheriff would not be entitled to a re-
lease fee unless the defendant was in the actual and legal custody of the
sheriff or constable at the time he pleaded guilty and paid his fine. The
constable or sheriff would not be entitled to any fees that they did not le-
gally earn.

           Question No. 4: The Weights and Measures officers are not fee
offioers and receive a salary from the State of Texas for their services.
Constables and sheriffs are not entitled to fees for illegal services perform-
ed nor are they entitled to any fees unlessthey perform legal services. The
proper amount of costs in answer to question Wo. 4 is *s follows:
Honorable Tom L. Hartley, Page 3 (O-2437)



           Trial fee . . . . . . . . . . . . . , . w.00
           County Attorney's fee . . , . . . . . . 5.00

           If the fine MWS assessed at $1.00, the defendant would have to
pay $10.00 as fine and costs.

                                            Very truly yours

                                    ATTORNEY GEk?EFLk+L
                                                     OFTZXAS

                                     By /s/R.    J. Fanning

                                             V&I. J. Fanning
                                                    Assistant
APPROVED JIJN12, 1940
/s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS                        Approved
                                            Opinion Committee
                                                 By B 1VB
                                                 Chairman
