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    Honorable Mike Driscoll         Opinion No. JM-601
    Harris County Attorney
    1001 Preston, Suite 634         Re: Duty of a sheriff to comply with
    Houston, Texas   77002          the requirements of article 38.33 of
                                    the Code of Criminal Procedure re-
                                    garding information to be obtained
                                    from a defendant convicted of driving
                                    while intoxicated

    Dear Mr. Driscoll:

         You request our opinion in regard to the duty of the sheriff of
    Harris County under section 1 of article 38.33 of the Code of Criminal
    Procedure. That section provides in part the following:

                When a person is finally convicted of an
             offense of driving while intoxicated or [in-
             voluntary intoxication while operating a motor
             vehicle], the clerk of the court shall mail a
             notice of the conviction to the sheriff of the




    Code Grim. Proc. art. 38.33, $1. You ask how the sheriff of Harris
    County may comply with the statutory requirements of section 1 of
    article 38.33 of the Code of Criminal Procedure when such records are
    not available in the sheriff's office. You indicate that this statute
    requires the sheriff to compile information from law enforcement
    agencies involved in the offense. In Rarris County, a minimum of 32
    municipal police agencies, eight constables' precinct offices, the
    sheriff's department and the Texas Department of Public Safety are
    involved in the prosecution of these offenses. The sheriff's office
    also indicates that some of these agencies do not photograph or
    fingerprint persons they arrest, and the majority of these defendants
    are never booked into the county jail, with the result that there is
    no photograph or fingerprint card.




                                   p. 2687
Honorable Mike Driscoll - Page 2     (JM-601)




     Section 1 explicitly provides that the sheriff shall compile
information "made by a law enforcement agency in connection with that
offense."   If the information has not been gathered by the law
enforcement agencies involved in the offenses, the sheriff is under no
duty to generate the information. We believe that the sheriff's duty
under section 1 extends only to compiling information previously made
by a law enforcement agency. Only this information should be sent to
the clerk's office. We also believe that this construction of section
1 is consistent with the legislature's purpose in enacting article
38.33 - i.e., to Preserve evidence to be used in subsequent criminal
proceedings   See Patterson v. City of Dallas, 355 S.W.2d 838 (Tex.
Civ. App. - Dallas 1962, writ ref'd n.r.e.) (statute should be
construed to give effect to legislative intent).

     The sheriff's office has also informed us that its Identification
Division has the responsibility of compiling the required information
and providing it to the clerk's office. The division has a staff of
21 persons who are primarily responsible for photographing and
fingerprinting prisoners in the county jail, as well as providing
forensic services, photo-lab and fingerprint experts for the criminal
courts. These deputies processed 82,161 prisoners during 1984. You
argue that the division is making every effort to comply with section
1 of article 38.33, but that it is impossible to do so.

     It is obvious that the sheriff has an absolute legal duty to
compile the information which is listed in section 1. Attorney
General Opinion E-595 (1975) held that where a sheriff has an absolute
legal duty to perform a function of his office, the lack of a
sufficient number of deputies or inadequate funding will not excuse
his nonperformance. If the sheriff lacks sufficient staff to comply
with section 1 of article 38.33 of the Code of Criminal Procedure, he
may make an application to the commissioners court in compliance with
article 3902, V.T.C.S.      However, the commissioners court has
reasonable discretion in funding the sheriff's office. See V.T.C.S.
art. 3902; see also Attorney General Opinion R-595 (1975).-

                             SUMMARY

             A sheriff's duty under section 1 of article
          38.33 of the Code of Criminal Procedure extends
          only to compiling the described information pre-
          viously made by a law enforcement agency. Only
          this information is required to be sent to the
          clerk's office. The sheriff is under no indepen-
          dent duty to generate the information.

             The lack of a sufficient staff or inadequate
          funding will not excuse a sheriff's nonperformance
          of an absolute legal duty.




                                   p. 2688
Honorable Mike Driscoll - Page 3   (JM-601)




                                                MATTOX
                                        Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General




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