                                     ,.~.
Hon. Stanley Timmons            opinion No. O-2104
County Attorney                 Fte: Overloading - Constables          -
Hsrrison.County                 Fees - Arrests - Release;
Marshall, Texas
Deer Sir:
             We have received end carefully   considered           your request
?,or ti   opinion upon the following  questions:
             "Question No. 1: When a local constable.1~
      working with, acaompanying,.~.and assisting            a:repre-~
      "mh&~A. 2n- -zJz*A%&ti %! 'A%%-'               -al& vf-e&h ill-
       spector.of.   the..llcense    adweight      division    of the.
      Department of Public~Safety           of the,S%ate~'of Texas,
      and such constable        and-inspeator    acting together
      apprehend      stop, and weigh a truck under the.provi-
       slons of &tide         827a,-Section    5 of the..Penal Code
      which.reads     as'.+ollgws:          ~
               U'No commercial motor vehicle;         truck     tractor,
       trailer     or semi-trailer     shall be operate 8 on ttie
       public &Lghway outsiae.the         city~limlts      of an in-
       corporated,city     or towa.with a loaa.exceedl+             TOO0
       pounds or anysuch vehicle.or           train or,.combihatidn
       of vehicles;    t.3dn0 motor vehicle, commercial,
       truck .trailer,     or semi-trailer,       having a rester
       weight than 600 pounds per inch width of $.re          ii    upon
      .any wheel concentrated       upon the surface of the
       bighway shall be operated on'the.public              highway ,out-
       side the limits of an.incorporated            citg' or town;
       provided ~,however+ that the provisions             of this sec-
       tion shall notbecome        effective     until'the    first    day
       of January, ~1932."
              "And at that time the lnspecto>. for the.llcense
       &a weight division    of the Department of Public Safety
       of the State of Texas, aids not place the defendant
      'under arrest ana'take before .a magistrate inst&nter,
       but in lieu of.that,   gives to the defendant in the case
      ~.a ticket in which the defendant promises to appear be-
       fore some particular   court and thereafter, and prior to
Hon. Stanley   Timmons, Page 2   (C-2104)


     the date on which the defendant agrees. to appear,
     the constable has prepared a complaint, warrant,
     and subpoena, serving the warrant on the defendant’.
     when he makes the appearance and prior to a trial
     of the consideration,   is he, the constable, ehtitl-
     ed to the arrest fee of two dollars together with
     a charge for subpoena service of any person or per-
     sons actually   subpoenaed?
            “Question No. .2:   If a constable is accompany-
     ing.. and wa#Lng with, and assisting      an employee or’
     inspector   of the license    and weight division    of the
     Department of Public Safety of the state of Texas, ana
     upon apprehension by such inspector-of        the lLcen%e
     and wefght division     of the Department of Public Safe-
     ty and the Constable,     a driver of a truck is charged
     for the violation    oft Article  827a of the Penti code
     wherein the person charged ,is given a notice t.9 ap-
     pear, *a does, as to same, make his appearance at a
     subsequent date as agreed upon at the %ims of his ap-
     prehension and makes ti plea’ qf guilty before the
     court;’ the Inspector for the license. and weight dlvi-
     sion of the Bepartment of Public Safety being absent,
     lri th8 aonstable who wasp with, and assisting      the in-
     ,$pector, entitled   to colle&Lon     of the fine and cost
     +nd a release fee when acceptlag       such fine and cost
     and releasing %he defendant from the terms of the
     judgmept assessed?
             *Question ;Nor 3: If ~a constable is accompany-
     ing, wcWd.ng with      and assisting   an inspector   of the
     license    and weight division    of the Department of Pub-
    ,lice Safety      and upon apprehension by such inspector
      and constable     a driver of a truck is charged for the
      violation   of &tide     827a of the Penal Code of the
      State of Texas wherein the person there charged is
      given a notice to appear but prefers to then and ,there
      enter his plea before a proper magistrate and is sac-
      eompanied by the constable to the office       of the court
      end makes his plea and .Is assessea~ a money judgment end
     the fine and cost Is then end there ,paId to the consta-
      ble who receipts    the defendants therefor      is the con-
      stable entitled    to a release fee of one A01la.r upon the
     pagznt     of such fine and release by him ,of the defend-

             Article 1065 Vernon’s   Annotated Texas   Code of   Criminal
Procedure,    reads as fo 3 lows:
Hon. Stanley         Timmons, Paged‘3    (O-2104)


            “The following fees shall be :allmded the’
     sheriff,   or other peace dfficer  performing .the ‘.
     same .services. ih misdemeanor cases, :to -;be taxed
     against the defendazit oneeonvictlon:
         : ‘11. For .executing each, war&d    of a&&d or
     caplas; or. ~making arrest ~w’ithout warrant; ~two: dol-
     lars.      :
              “2 .     For s&oning      each witne’ss,.   se’vsnt&five
     cents.
          lljs F~or“serving.
                    ’        any,.writ          n& .otherwise. pro-:
     viaea for, one a0um.
             “4 . For takikg &a approving each bona, &a
      returting .the same to the court :house, when neces-
       sary,. one a0im emfifty         cents.
    ~,                      ‘.:.
             115....’For, each~ &ommitment nor r.elkase, q.e. dol-,
      la.
        ,.. “6.        Jury. fee,. in, each case where a jury is
     actually         summoned, one doliar.
           ‘76. For attending .a prisoner on habeas ‘corpus,
     wheh: such ~prlsoner   upon~ a hesi%ng, has been. remend-
     ed to, custody, or. h,eld to ‘bails, for each day’s at-
     tendance, four a0ixar.9.            ,~~
           “8.  For conqeying a wit&&      attached .b$ &Lm to
     any court: out of .his county,; four doUar.s: f,or~ each
     day or fraationsl   part ~thereof~, am&his. actual neces-
     stiy expenses by the. nearest practicabl~e .public con-
    “veyance,, the amount to be:stated    by said~ officer,’
     under oath and’approved by the :juage of the court-,
     from which the attachment Lssued.
           “9. For conveylug .a pr&soner afi‘er ~convictloh
     to the county .jail, for~.~each mile    going and co’ming,
     by the nearest practicable     route gy private comey-
     ante, ten :eents a tile,   or: by railway,   seven. and one-
     half cents a mile.
         ~. lllO. ~For conveying a prisoner arrested Cm a
     warrant or capias,: issued from another county to %he
     court or jail, oft the counQ f mm which then’process
     was issued,   for each mile traveled going and combng,
     by the nearest practicable    route, twelve and one-
     half cents.
 Hon. Stanley    Timmons, Page 4        (O-2104)


               "11.  .For each mile he may be compelled to
         travel in executing criminal process ana summoning
         or attaching witness,   seven and one-half cents.
         For traveling   in the service of process not other-
         wise provided for    the sum of seven and one-half
         cents for each miie going end returning.     If two
         or more persons are mentioned in the same writ
         or two or more writs in the same case, he shad
         charge only for the distance   actqally  at@ neces-
         sarily traveled in the samertt
             Article 1011, Vernon's Annotated Texas Code of Crimi-
_ nal Procedure Drovides that "no item of costs shall be taxed for
  a purported service which was not performed   or for a service
  for which no fee is expressly provided for;I'
             This department has repeatedly'ruled   that constables
 and sheriffs   are not entitled to fees except for Lega& services
 performed    as outlined by the fee statutes.    See opinions Nos.
 O-106 O-b93 o-768, o-963, 0-1160 and many other opinions of
 this aepartdnt.
              Article   827a, Section     5, Vernon's    Annotated Texas Penal
 code,    reads as follows:
                 "Noncommercial motor vehicle,   truck-tractor,
         trailer    or semi-trailer   shall be operated on the
         public highway. OUtSm of ~the.limits       of ti incor-
         porated city or town with a load exceeding seven
         thousand (7000) pounds on any such vehicle or
         train or combination of Vehicles; SXY3      no motor
         vehicle,    commercial motor vahfcle,   truck-tractor,
         trailer    or semi-trailer  .having 2 greater weight
         than six hundred (600) pounds per inch width of
         tire upon any wheel concentrated      upon the surface
         df the highway shall be operated on the public
         highways outside of the limits of an incorporated
         city or town; provided, however, that the provi~-
         sions of this section shall not become effective
         until the first     day of January, 1932."
              Article 239, Vernon's       hnQtat8d      Texas Code of Criminal
 Procedure,    reads as follows:
               'IA person is said to be arrested when he has
         been actually placed under restraint    or taken into
         custody by the officer   or -person exeauting the war-
         rant of arrest."~
 Hon. Stanley      Timmons, Page,~'5 (O-21$),


               Article    217, Veruonts *dated       .~. Texas Code of Criminal
  Procedure,    r&as     as follo~s:~ ;
              "In each c&ie~~&&mrated in *Iii& chapter;
        the person making the arrests shal$ immediately
        take the 'persod &rrGst&d'b&fbre the magist?'ate
        who may have ordered the arrest,   OI! before 'the
        nearest magistrate where the arrest was made
        without & order."
               Article   319; Vernonts Am&ate&Texas           Penal code,       reads
 as follows:

              11&y officer, jailer,   k.&ard    having the.
        legal custody ~0f.a person~accused    02, donvicted
        of a misdeme~~.r~who wilftily,permits      such per-
        son to escape or to.be r:escced shaQ be fined                 .1,
        not &CeediIIg 0~8,thOu?&d dQii~&."
               Article   3?2,   Vernont,s.Ann+ated     Taxas..Penal   code, reads
" 'as foUlotiS:

               ",Any officer,,jailer,  or guard who bas,the
        legal Oust0ay,O~~a~p&+&on.adcused or'~d6nVicted.
         of a misderqeanor who negligently   permits such
        .per.son ,to escape or,,to be rescued shall be fined
        not' ~excee+qg five &indred flolI@ir~.'~*Y .,: .
               'Articl&91&',~ Ve&oD.ts.Anziotated      Texa&:-Code '6s Criminal
 Proceduri3,    'reads as~'foXl&is:
             .ltAll judgments <'end‘f$i$l 'b&&i 'of‘the ~j~us<,'
        tice shall be ~+endered'.id open: cour~~~~d'ent~red
        upon his docke%,Ft"       ':~ ,, .:
            .Artitile 917, Vernon's       Annotate? Texas 'cdd8 Of Criminal
  Procedure ; reads as follass:
             "il'iheR jd&elit  :,in. c&e cjf:&&iCtion~~in       &I
       ~~C$minal action'be?ori,.a      ',justs&e oft the .peace,,
        shall be that the .&at& of Texas recover of the,
        defendant the fine and costs,          and that the clefenq-
        and renaa in custody of the sheriff            until the
        fine and costs a3%Daid:
        to colle~ct the same."       (                             '
               ,Aqlzicle 920,'yernonts    Annotated Texas C$e,of            Criminal
  Procedure,     reads.as,follows:
Hon. Stanley      Timmons; Page 6        (O-2104)


             “A defendant placed in jail on account of
      failure   to pay the fine and costs can be dis-
      charged on habeas corpus by showing:
               “1.   That he is tod poor to pay the fine      and
      costs,      ana
            “2. That he has remained in jail a sufficient
      length of time to satisfy the fine and costs,   at
      the rate of three dollars for each day.
             “But the defendant shall,    in no case under
      this article,   be dlschWg8d until he has been
      imprisoned at least ten days. and a justice       of
      the peace may discharge the Defendant upon his
      showing the same cause, by application      to such
      justice;   and when such,application    is ~granted,
      the justice   shall note the same on his docket."             '~

               Article   792,~Vemion's     Annotated Texas Penal Code, reads
as follows:
             "In case: of *y~pers&       arrested for violation
     of the-preceding     artlcl.as   relating    ta speed of Ve-
     hicles,    unless such,person      so arrested shall demand
     that he be taken forthwith before a court of compe-
     tent jurisdicticin    for'an Immediate hearirig ~the
     arresting    officer  shall take the license number,
     name ana 1nak8 of the car, the~name and address of
     the operator or driver thereof           and rdtify   such
     operator or cirivt3? in writing $0 appear before a
     designated court of competent~jurusaiction            at a time
     and place to be specifled        in such written notice at
     least five days subsequent to the date thereof,~and
     upon the promise in writing of such person to appear
     at such time and place;        such 'officer   shall forthwith
     release    such person from custody;         Any person wilfully
     violating    such promise, regardless        of the disposition
     of the charge upon which he was originally            arrested,
     shall be fined not less than five nor more than two
     hundred a0ilars.~~
            Article  792, supra, authorizes       the "giving of a ticket
or written notice"~ by the arresting      officer    to a person arrested
for violation    of penal articles   preceding Article      792, relating
to the speed of motor vehicles,      and provides a penalty for the
violation   of the offenderts    promise to appear.       This article
does not apply to Article     827a, Section 5, supra.        There~is no
    Hon. Stanley       Timons,      Page 7      (,C+gm4) ~,, ...., :-     : ,. :. ,:::


     statti$oory aiitborlty     for the i,ssuanc,e of $&kets.~or written no-
     tices:bqi-' ar,rf#$@;:?f$i+*:&          'in d~~r~o+a~ng':?2&es.,      :
                .,                      .,',
                   Opinion No,. 0-1189,of         this department holds that
  -~-bnly whe+ 'th8, facts s&w. that' t&=&f&~a$-,                 is, in, the., actual
     and lentu'cu+dy         of. ti,jonst@i$~ .at~thejtitn?‘he'plgads-guiItjr
     and~piC~ys~hls 'fihe~~is .th8.-donstable entStled't6            a Felease fee.
     Th$Sl.opinio,q.fur$her      &$s~:$hat,,w+~n the aefendant malls his
     fine; v$wt,arily        appear~s:;,~~ne:~r;appe~s         Yn,the Leaal Oust0ay
     of'snother'    off$&&'the:       aons'table.$s    not .@titleCi t+a-:r+ease
     fee.     ye :enc+ose a copg.,of. said, opinic$           .:.~:-,.~
                                                                    ..   :
    ."     .,
                   Op'iaOn &0:.$-14!j% .bf.thls' ae&rtmetit. h&ds,;:&m6ng
     other thlhgs;      that constables. aid .sheriffs.d&not             have the.,
     authority to make arrests without warrants for violatldns                      of
     the.&oad limi.t,l.aw..i      *id   opinion,pont+ins~,a~full         discussion
  :’of ~+iaz~@?tt8r._qy8 enc$se,herewith                 &,~ppy-,of said opinion.
           i          Opidibljl No.'.O&$3 af this,~aep~tmel;t,h~~as                     among
        o%her&h&g-s          that a~&5tistabl& is 'n~'t entitled- t&'&&e@
  j :~fee-~fo~-read& a-wari&it. of~,drrest;tb;.a.:mot'orist:~~$6r S&84-
.._
 " ;ihg.Wheh:tlie npt'ortst.\tias~ 3n~%he 'custOdfr..:bfi.arid'~~der.'.arS8~st
     ~rby a .Higtiay ~ih+natl.:               sara opinioli also:~ol~S~th~& a' CPA-
      ',stable ?0+a not be~.~        entltl~ed to. fee's' :fo* : serving a" subpYo8n.a
    ~'L+js?      he ~~tu@ll&ar&leg'~ly~
                            .,    ,_ .          ,.      &$ecut~ed:,$h~.,
                                                          ~_.              same'. :      ;" ~~,
                     fin &nsGer 'tdyoti            ?i;;'&quetioti       Jrou &e r&peMully
        advised as,follows:              ..,
                                   ./../._. .~ ~:.
                                                 1 ,-,      ~,  .., .' .L.     :
         .: .%"       it,. is a ~su8st$i        Gf, .ya& a;' & &&he+. & & ,th8
        License aa Weights Inspector. arrested the truck driver ate
        the .time he StOpp8d~bi~ and gave him a ticket.                          If th,e.truck
        driver was arrestea.by.the              License end lrfeights 'Itispector,j.t
      .was the duty of thaLicense                  aa Weights +s.p,ector,td carry
     '-the truck'driver          b6fofe the nearest.'magistr&t&                and U&&duty
        could not be performed by the giping~ of, a '(ticketU,wauthorized
       ~by law:'.If'.h&did         not arrest'the.truck~tiiv&ti.'.there.wCis                no
   '~ aecessity       orl-auifti     ?e$son for his atteeted                effort    to require
        the truck driver to appear in court at a later dat,e,upon the
        purported authority           of a "ticket."          If the truck dH.vtir was
        arrested and released without authority                     of law, ha wZou&dper-
        haps occupy the same status as "an.escaped                       prisoner."~. abut re-
        gardless of whether or not the truckdriver                        was an "escaped
        prisoner",      if the constable           executed a valid warrant of. &rest
        legally    issued-by the Justice of the Peace by arresting                         said
        truck driver at a later date he would be entitled                           to an arrest
        fee and his proper mileage.                  If he executed valid subpoenas
        for witnesses        in the case lawfully            issued by the Justice of the
        Peace he would be entitled              to his fees and mileage for execut-
        ing such process.
Hon. Stanley     Timmons, page 8


              In answer Taoquestion No. 2,' you are rez&ctfUl&
advised     that it is' the opinion of this department that:
            1. The constable would hot be entitled   to any .fees
unless h8 actually performed &$& services.       He would hot
be entitled   to -any pay for any Alled. services performed.
           2.    He would'not be entitled to fan errest.'fee be-
cause the facts .stated do not show a lawful arrest by theme
constable;    indeed, the facts indicate that if an arrest was
made that it.was made by the License and Weights Inspector.
If the constable made the arrest it would be an illegal      arrest
without warrant for which no~fees could be given to the con-
stable.
             3.   The question as to whether'or not the constable.
vr0ula be  entitled   to a release fee would depend upon the facts
in the case.      If the Justice of the Peace render?d his jucig-
ment as outlined by Artlcl~f~17,      C.,C.P.  supra;~ and.$;ehis
Bent       stated that the.d      naant was 0 remain in t       0m0aq
of the constable until the fin        nd costs wepe Daiq and if the
defenclant,then'in    the actual c&.taody of~the constable    and in
the .legal custody of the ,constable by virtue of~the authority
of said judgment paid his fine and costs, the constable          then
would be entitlei to a release fee for discharging 'the'akfena-
ant from the force and effect      of a jUdgUI8nt restraining   him.
           In answer to your third question, Wi tie of'&8 kpin-
ion that paragraph 3 of our answer to your second question en-
~swers your third question also.
APPROVH)SOL 23, 1940                     Yoixrs very truly
/s/~ Gerald C.~ Mann
ATTORNEP   GENERALOF TEXAS      .        ATTORNEY
                                                GEN-         OFTEXAS
APPROVED:OPINIONCOMMITTE                 By /s/   Wm. J. Fanning
BY:     BWB, CHAIRMAN                    Wm:J.    Fanning, Assistant
WJR AW:wb
ENCLOSURE
