Hon. Geo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir:
                   Opinion NO. 0-1468
                   Re: Is the sheriff of Wlllacg County entitled
                        to mileage fees according to stated facts?
           We are in receipt of your request concerning the
following question:
          "The Sheriff of Willacy County went to
   the State line on Justice of the Peace Warrant
   for a defendant charged with burglary of a
   store in Will&g County--a felony case. He,re-
   turned with the prisoner to Willacy County; and
   the Grand Jury returned an indictment against
   the defendant for the'offense of burglary, based
   upon the testimony given in the Examining Trial.
   Upon trial of the case It was learned the defend-
   ant was a juvenile and the case was transferred
   to the County Court.
          "Is the Sheriff of Willacy County entitl-
   ed to his mlleage fees for going to and return-
   ing from the place of arrest?
          "You will notice in this/connection that
   this fee is based upon the charge filedin the
   Examining Court. .I refer you to Article 1020,
   C.C.P.
          "If you hold that the Sheriff 5s entitled
   to the fee, then would the same rule apply to
   reducible cases with reference to the fee?"
            Article 1019, as amended, C.C.P., provides:
          "If the defendant is indicted for a felony
   ana upon conviction his punishment is by fine or
   confinement in the county jail, cr by both such
   flne and confinement in the county jail or convic-
Hon. Geo. H. Sheppard, page 2        o-1468



    tea of a misdemeanor, no costs shall be paid by
    the State to any officer. All costs in such cases
    shall be taxed, assessed and collected as in mis-
    demeanor cases."
           Article 1020, as amended, C.C.P., in its second
and fourth paragraphs reads as follows:
          "Sheriffs and Constables serving process and
   attending any examining court In the examination of
   any felony case, shall be entitled to such fees as
   are fixed by law for slmllar services in misdemeanor
   cases in County Court to be paid by the State, not to
   ex~ceedFour and No/100 ($4.00) Dollars in any one case,
   and mileage actually and necessarily traveled in goLng
   to the place of arrest, and for conveying the prisoner
   or prisoners to jail as provided in Articles 1029 and'
   1030, Code of Criminal Procedure, as the facts may be,
   but no mileage whatever shall be paid for summoning
   or attaching witnesses in the county where case Is
   pendlng. Provlded no sheriff or constable shall     ~'
   receive from the State any additional mileage for any
   subsequent arrest of a~defendant in the same case,
   or in any other case Fn an examining court or in any
   district court based upon the same charge or upon
   the same criminal act/or growing out of the same
   crlm!na% transaction; whether the arrest Is made with
   or wlthout a warrant, or before or after indictment,
   and inno event shall he be allowed to duplicate his
   fees for mileage for making arrests, with or without
   warrant, or when two or more warrants of arrest or
   caplases are served or could have been served on the
   same defendant on any one day.
           “i * * **

          "The fees mentioned in this Article shall
   become due and payable only after the Indictment
   of the defendant for an offense based upon or
   growing out of the charge filed in-the examining
   court and upon an itemized account, sworn to by
   the officers claiming such fees, approved by the
   Judge of the District Court, and said County or
   District Attorney shall present to the District
   Judge the testimony transcribed in the examining
   trial, who shall examine the same and certify
    that he has done so and that he finds the testi-
   mony of one or more witnesses to be material; and
   provided further that a certificate from the Dls-
   trlct Clerk, showing that the written testimony
Hon. Geo. H. Sheppard, page 3          o-~1468


      of the material witnesses has been filed .wlth
      said District Clerk, in accordance with the
      preceding paragraph, shall be attached to said
      account before such District or County Attorney
      shall be entitled to a fee in any felony case
      for services performed before an examining court."
           Article 1085, C.C.P., Volume 3, Title 16, "Delin-
quent Child", provides:
             "A proceeding against a delinquent child
      may be begun by an information based upon a
      sworn complaint, each of which shall state in
      general terms that the acts alleged constitute
      such child a delinquent child, and shall con-
      form in other respects to the rules governing
      prosecutions for misdemeanors begun by infor-
      '~mationand complaint. many proceeding so 'bepun
      which states uvon the face of the information
      that the age of the child is under seventeen
      in the case of males and under eighteen years
      'inthe case of females shall not be regarded
      as charging said child with a felony or a mis-
      demeanor but as a dellnauent child, although
      such acts alleged would otherwise charge a
      felony or a misdemeanor. If such uleading
      does not allege the sue of the~accused then
      the accused, his or her parent, guardFan,&
      torney or next friend, may make and file an
      affidavit at any time before announcement of
      ready setting up the age of the accused, and
      on proof that such age is within the iuvenlle
      limits, the case shall be transferred to the
      juvenile docket,=,   if the court is    not a
      juvenile court to the prover iuvenile court,
      entered on the iuvenile docket and proceeded
      with against the accused as a dellnauent
      child upon the same information and complaint."
      IUnderscoring ours).
  ,          Article 5124, Revised Civil Statutes, 1925, Volume
15, Vernon's, Title 82, "Juveniles" reads as follows:
             "The officer conveying any male to any
      State training school shall be paid by the
      County Inwhich such child was convicted the
      actual traveling expenses of such ofTficerand
      child, and five dollars additional.
           Article 5136, Revised Civil Statutes, 1925, Volum
15, Vernon's, Title 82, supra, provides:
Hon. Geo. H. Sheppard, page 4         o-1468


            The court committing any girl to the
    Girls' TrainFng School, in addition to the
    commitment, shall annex a carefully prepared
    transcript of the trial to aid the officials
    of the institution in better understanding
    and classlfyFng the girl. The court shall
    also designate some reputable woman to convey
    the glr1 to the institution. The cost of con-
    veying any girl committed to this'institution
    shall be paid by the cbunty from which she is
    commltted, provided that no compensation shall
    be allowed beyond the actual and necessary ex-
    penses of the party conveying and the gLr1 con-
    veyed ."
           Article 1020, C.C.P., dealing with fees in the Ex-
amining Court refers to "Sheriffs and Constables serving pro-
cess and attending any examining court in the examlnatlon of
any felony case, etc.," (Undersooring ours).
           In the present instance the defendant was a
   juvenile, although this fact was not revealed until
   the trial. Nevertheless the effect of'the~defendants
   age removed the case from felony classification. The
   status of the defendant was that of a delinquent chi~ld
   under Article  1085, C.C.P.; Andysince even a convic-
   tion for an offense which otherwise would be a felony
   will not alter the fact that the defendant becomes a
   delinquent child and not a felony punishable by death
   or confinement in the state penitentiary, the sheriff
   is not entitled to mileage fees for going to and re-
   turning from-the place of arrest of the minor under
   Article 1020, C.C.P.
            Several opinions have been written by this Depart-
ment during prior administrations. We wish to quote from a
leading opinion, dated October~7, 1932, by Hon. Bruce W. Bryant,
First Assistant Attorney General, to Mr. M.M. Alexander, County
Auditor, Henrietta, Texas:
          "In reply, you are advised that the Comp-
    trollerof Public Accounts has not for a long
   time-been allowlng fees to district clerks, sher-
   iffs, county and district attorneys for services
   rendered In felony cases when the defendant was a
   juvenile. These officers are entitled-'tocertain
   fees.for services rendered In felony cases under
   certain conditions. A felony case is one where
   the defendant may be sent to the penitentiary.
   Now a juvenile cannot be sent to the penitentiary,
Hon. Geo. H. Sheppard, page 5          o-1468


    even though he be found guilty of committing
    acts which would constitute the commission of
    a felony if he were not a juvenile.

           "It is for these reasons that the officers
    mentioned In your letter cannot receive compensa-
    tion from the State for their respective services
    incasea of this character, because as heretofore
    stated the State only pays such officers where the
    defendant Is charged with or convicted of a felony.
    This frequently works an undue hard,shipupon these
    officers, especially sheriffs and district clerks,
    especially where the Indictment does not allege
    that the defendant Is, if a male; under the age of
    seventeen years,s,   if a female, under the age of
    eighteen years. However, this is-‘amatter for the
    Legislature. It Is elementary that where the
    statute prescribes duties to be performed by a
    public officerand provldes no compensation for
    the performance of that duty, that the officer can-
    not collect a fee for the performance of said duty."
    [Underscoring ours).
            Your attentlon is also called to opinion dated
October.19, 1936, by Scott Gaines, First Assistant Attorney
General, to-the Hon. Eugene J. Wilson,County Attorney, Bay
City, Texas, in which he holds that no fees are allowed of-
ficers for their services under the statutes of this state in
juvenile cases tried and disposed in a county court, except
the fee and expenses allowed the sheriff for conveying a juven-
ile to the institution to which he has been committed.
           A proceeding in an Examining Court against a juven-
ile charged with a felony Is not a "felony case within the
purview of Article 1020, C.C.P. any more than it would be in
an action against said juvenile in a regular county court
action.
            We must, therefore, answer your question in the
negative.
           It is our opinion that a sheriff is not entitled
to mileage fees from~the state under Article 1020, C.C.P.,
where his prisoner was disclosed to be a juvenile upon trial
of the case resulting from Indictment for burglary based upon
testimony given In the examining trial.
           In view of our decision it Is unnecessary to answer
your second question.
Hon. Geo. H. Sheppard, page 6           o-1468


           Trusting that we have satlsfactorlly complied with
your request, we are
                                ATTORNEY GENERAL OF TEXAS


                                By s/Dick Stout
                                     Dick Stout
                                      Assistant
DS:ob:wc
APPROVED OCT 14, 1939
sfiobert 6. Kepke
(Acting) ATTORNEY GENERAL OF TEXAS

Approved Opinion Committee By s/BWB Chairman
