         OFFICE      OF    THE   ATTORNEY      GENERAL         OF   TEXAS
                                     AUSTIN




Honoreble   Thorn8         H . Robert 8011
County Attorney,           Camp County
Pitt rburg,  Teur

Dear   Sir:                                  Oplaloa   no.     o-7153
                                             RI: Cm    rharlff       iO&aiiJ    luk0
                                                 charge      r0r    ltten4lng    8COIa8




q u o ted l 8   sollourt




                                                       to the 8cene of
                                                         1 at the 8cene
                                                         1 injured, an4
                                                        h8 sherlfr   take8

                                                             ~~~~~~~~m~~-

                                                    under taker.
                                                          an
                                                r the injured
                                                cal attention.
                                                   over four hours
                        Upon the arrival     af the dead man’s
       fath.d,  the next day after     the accident,      the sheriff
       &urned .the dead man’s personal     effects     over to the
       iabe?,   who asked the sheriff,     what he owed him.
       The 8heriff  replied  that he thought $20.00 would be
       a lab   payment.
Honorable      Thomas E.      Robertron       -    Page     2


               “The qw8tfon           8ubmitted      f8:      Under these
        factr,  cm the Sheriff   legally                   make a charge
        for thlr rervlce ren4ere47

                “18 thlr  collection         un4er         the   above    fact8
        in   vlolatlon   of Art.    365      P.C.1”

            Article  41, Code of Criminal     Proce4ure.   provides    ln
part that each 8herlff     -11   be a oonwrvetor       of the peace ia
hlr aount~,   an4 rhll   lr r er t
                                 all  offender8    against   the laur of
the State,   in hi8 vlev or hear log, 4114 take them before        the
proper court    Sor exminatlon   or trial.

               Articlee      968-989,      Code or Crbnhel               nocedure,   pro-
vider    for   proosedingr       ln     lnque8tr     upon 4ea4       bodle8.

              Uhlle  the rherlff,    a8 l “con8er?ator     of the peace”
vould 8eem to be within       the rcope of hi8 offlclal        duty la
attending     promptly   the 8cene of a violent      death ulthln    his
county bad the 8Ub8eqWnt          1nQwrt    thereon,  yet he 18 not en-
titled     to a fee of office     for r;uch attendance    for the rea8on
that now Is provided        by lnw.     See enclo8e4   copy of Opinion
No. O-5432 for rlmllar       holding    in regard to constable     ‘8 fees.
Of courae,     if an lrre8t    18 made by virtue     of such lnvestlgation
of the fatality      than the regular     fees provided     by law vould be
avalleble.

             It 18 well    Irettled a8 law that an officer    18 not
entitled    to receive   any CompenMtioa    for hi8 offlclal     services
other than that which ha8 beea provided         by law.    Be may not
recover   from third    perscm compensatlm     for the perfcrnance
of an act within      the 8cope of his official    duties.    See en-
closed   copy of Opinion      80. O-773, and als3 34 Tex. Jur. 53’;.

           As to acts which an officer       is under n3 o’cligatlzn
to perform because     of his official   character,    he stand3 as
does any nonof f 1c :a1 person;    what such a person may lawfully
do he may 40, and contracts      vhlch  the private    lndivldual   may
make and enforce    he may make and enforce.        34 lex. Jur. 534-
535 ;
                      I




Honorable       Thoma8 E.         Robert ran      -   Page 2



              ffter l c a r eful M a r c h 0s the rtatute8   ve are UQ-
able    to f la4 any off loibl   duty placed     upon a rher ltf   to take
charge 0s the perronal belonging8           0s an accident   victim    or,
however laudable     it MJ be,      to carry the injured     to a horpltal
or call    an undertaker     for the dead.     Thlr vould seem to be a
duty coaunon to all per8on8,        private   or 0rriciai,   owed to any
human in di8tre88.       Any oharge made for ruch 8ervice8          rendered
vould   rtaad or fall     un4er the civil     lav pertaining     to recover-
le8 on oontraotr     or qwntum merult.          In no event vould it be
COnlridOred      a8       a fee   Of   Off iOe.

                Article       365,     Penal   Code of Texar, 18 a8                 fOiiOV8:

                ‘Ifany offlcar      or per8oa ruthorlred   by lav to
        dewad   or receive     fee8   0s 0rrice, 8hall ~iiiruii~
        collect   for himwlf      or for another any fee or fee8
        not alloved   by lav,     or any money a8 a purported       fee
        for a 8ervlee    or act not done, or any fee or Seer
        due him by lav in exca88        0s the fee or fee8    alloved
        by lav for such aervice8,        he shall  be confined     in
        the penitentiary     not IS88 than ~VO or more than
        five years for each offense.n
             It 18 plain   that raid next                    lforementlone4            article
deal8   only ulth fee8 for an offlclal                       act    done    or   for    the
failure    to 40 6n 0rrlciai
          ---                  &.                            -

           Therefore,  unle88   raid 8herlff  collect3 or collected
8ald sum of money a8 a fee for the doing of an official        act or
for his failure   to do an official    act which it was hLs legal
duty to do, we are constrained      TV hold that he has not violated
any law.

                                                           Yours    very    truly

                                                      ATTORNEYOENZN              OF TEXAS

                                                      By   &&-IL+<-              ??lgLzGj
                                                           Robert    L.    kttlmore,         Jr.
RLL:zd                                                                     Assistant
Encl.
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