            TErE     RTrORmEY             GENERAL
                           OF   %=EXAS




 Honorable C. 0. Murdoch
'CountyAttorney
 Menard County
 Menard, Texas

Dear Sir:                           Opinion No. O-4058
                                    Re: Is a State Game Warden entitled
                                         to collect an arresting fee of
                                         $2.00 for making an arrest in
                                         misdemeanor,cases i.nvolvingthe
                                         violation of the game laws?

          We quote from your letter requesting an opinion of this depart-
ment on the above stated question as follows:

          "Is a State Game Warden entitled to collect an arresting
     fee, fee of $2.00, for making an arrest in misdemeanor cases
     envolving the violation of the game laws?

          "AHTICLF,NO. 1065 of the Code of Criminal Procedure of
     Texas provides:

           "'The following fees shall be allowed the sheriff, or
     other peace officer performing the same services in misde-
     meanor cases, to be taxed against the defendant on convic-
     t ion:

          "1. For executing each warrant of arrest or cap&s,
     or making arrest without warrant, two dollars.'

          "ARTICIZ NO. 4024 of the Civil Statutes of Texas pro-
     vides:

          "'I~making arrests. . ., the Commissioner or his depu-
     ties shall be allowed the same fees and mileage as sheriffs,
     the same to be charged and collected as are sheriff's fees.'

          "Though Article No. 4024, above mentioned, probably was,
     and I~think it was, repealed by Article 978f of the Penal
     Code of Texas, which abolished the office of Commissioner,
     it seems that under ARTICLE No. 1065 of the Code of Criminal
     Procedure Game wardens as 'other peace officers' are entitled
     to collect fees for making arrests, unless the legislature
     limits the compensation of Game Wardens under Section 7 of
Honorable C. 0. Murdoch, Page 2 (0-4058)

      Article 978f, above mentioned, to such an extent that said
      fees would not be allowed. I do not know of any law that
      limits same. And, too, under said Section 7 the Game, Fish
      and Oyster Commission has the power to limit aaid compensa-
      tion. Since I do not know of any regulation of the said
      Commission or law prohibiting or limiting the compensation
      of Game Wardens to the extent that they cannot collect fees
      for making arrest, it is my opinion tbat they may, until
      such limitations are placed upon them. However, I do not
      have a copy of the regulations of sai,dCormslesion."

          Senate Bill No. 83, Acts of the 4lst Legislature, Regular Ses-
sion, 1929, (Article 978f, VernonPa Annotated Penal Code) was an act
abolishing the office of Game, Fl.shand Oyster Commissioner and creat-
ing the Game, Fish and Oyster COmmisaion;vesting all of the authority,
power aa autiea ana functions of saia Commissioner in the Game, Fish
and Oyster Commission created and provided for in the Act; providing
for the appointment, compensation, bond, duties and functions of the
Game, Fish and Oyster Commission, providing for an Executive Secretary,
Assistant Executive Secretary, to be appointed by the Commission and
providing for all necessary Game and Fish Wardens, Division Head6 and
other employees of the Game, Fish and Oyster Commission, and changing
the law of the State of Texas in such respect;6as necessary in order
to carry out the purposes of the Act; enat:tin.g
                                               the necessary matters
and things incidental the purpose and subject of the Act; making the
necessary appropriation out of the State Treasury; providing that the
Act would take effect, declaring the rule of construction, repealing
all laws and parts of laws in conflict therewith and declaring an emer-
gency e

          Section 7 of the above menti.onedAct expressly provides in
part, '. . . the compensation of all divi,sionbeads, Game and Fish Ward-
ens and other employees of the Game, Fish and Oyster Commission, herein
provided for, shall be fixed by the Game, Fish and Oyster Commission;
provided that the Legislature in each biennial appropriation bill shall
fix the maximum compensation to be paid to such division heads, Game
Wardens and other employees."

          Senate Bill No. 423, Acts of the !+7thLegislature, Regular
Session, 1941, is a general appropriation b5.11for the executive and
administrative departments of the State government. The salaries of
Game and Fish Wardens for the fiscal years ending August 31, 1942, and
August 31, 1943, are appropriated thereh

          The Game and Fish Wardens of this State are compensated on
an annual salary basis and no compensation or fees are allowed for their
services a8 such, other than the compensation provided in the General
Appropriation Bill above mentioned.

          We quote from an opinion of this department written September
24, 1936, addressed to the Game, Fish and Oyster Commission, Austin,
Texas, written by Honorable Harry S. Pollard, as follows:
HonorableC. 0. Murdoch,Page 3 (O-4058)


            II. . * As none of the game and fish wardensor other
    employee6of the Geme, Fieh 80Oyeter Commie~ionare entitled
    to collect,receiveand retain for their pereonaluee and
    benefitany arreet fees allowedby law, which are aseeaeed
    and collected88 coets of court,they would not be entitled
    to retain for their perennaluee any part of the fines or
    penaltiesasseaaedfor violationeof the pollutionlawe,
    even if Articlea950 and 951, aa amended,of the Revised
    Code of CriminalProcedureof 1925 were applicableto crlmi-
    nal cases arisingunder the pollutionetatuter. While it 16
    providedby legirlativeeliactment that the Dame, Fish & Oyr-
                   is entitledto collectana receive the 8am.e
    ter COmIIIiBEiOn
    fees and mileageas rheriffsin making arreste,eummoning
    witnessesand servingprocesses,such feee and mileageto be
    chargedend collectedae are sheriff'sfees, such items can-
    not lawfullybe retainedas the personalproperty,ofthe ar-
    restingofficer. As respectsgame and fish wardensend other
    employee6of the Game, Fish & Oyster Commission,such fees
    when assersedand collected.must be accountedfor and remit-
    ted to the Commissionend by it depositedin the StateTreae-
    ury to the creditof the proper fund."

         We are enclosinga copy of the above mentionedopinionfor
your information.

                                                   Yours very truly

APPROVEDNOV 4, 1941                          ATTORNEYGENERALOF!CEXAS

Id Grover Sellers
FIRSTASSISMNl'                               By /e/ ArdellWilliame
ATPORNNYGNNNRAL                                     ArdellWilliame
                                                         Aasietant

AW:LM:I&l

KNCLOGURE

                                      APPROVED
                                      OPINION
                                     COMMITPE
                                     BY /e/ Bh'B
                                       CRAIRM4N
