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          OFFICE   OF THE    ATTORNEY      GENERAL     OF   TEXAS
                                 AUSTIN




Honorable     H. A. Hodges
CoULlt~AUditOT, ifilliI3iUBOll COUllty
Oeorgetown, Tera8


3ear Sir:     '.


                                          oourt   in ths exai@nat.Lon



               Your letter
cr this     department on
48 r0ii0w8:



      the Justice




                            ir under the Oiiloerr  Salary Law
                                 pid a salary and the Preolnot
      Orribers~~are p&d by fees,     and more than 3000 votes
      are caqt, in:,,the general elections.

             *Age 1029 CCP, Felony tees, doee not give au
      amount to be paid either   the Sheriff or Constable
      for taking bonds but Artiole   1005 CCP allows $1.50 to
      Sherirt or Constable ror taking bond in a MISDEXE~NOR
      case.
             *In my opinion the Constable Is not entitled
      to a ree for taking bond in a Felony Exemining Trial
      2nd I h&e deducted suoh charges from the acoounts,
      however I shall be pleased to have your opinion in
      tne rtitter. *
ix.   a. A. Hougee,    p4ge 2
                                     9



              -ticlo      1020, Vernon’s   Annotated   Code of Criminal
T’rocedure,   provider,     In Part:

               I* l * Sherlrrr and oonstables      senlng    pro-
       oess knd attending any examining court in the examln-
       ation 0r any relony case, shall be entitled          to suoh
       roes ar are..tlxed    by law for 8imllar servloer      in mir-
       demeanor case8 In oounty court to be paid by the State,
       not to eroeed four and no/100 ($4.00)        dollar8 In any
       one case, and mileage aotually       and necessarily     traveled
        in going to the place of arrest,       and ror oonveylng the
        prisoner or prlsonere     to jail ar provided in Articles
        1029 and 1030, Code of Criminal Prooedure,         as the
        iaots may be, but no mileage whatever shall be paid
        ror summoning or attaohing witnesses       In the oounty
        where the ease Is pending.       Provided no Sheriff      or
        Constable shall reoeive~‘trom     the State any additional
        mileage for any subsequent arrest of ,the defendant in
        the same 0380, or in any other oase in an examining
        court  or in any district    oouti based upon the same
        charge or upon the same e&id-         aot, or grAng out of
        the same orlmlnal transaotlon,      whether the arrest is
        made with or without a warrant, or berore or after
       .indiotment,    and in no event shall he be allowed        to
        duplicate   his roes for miie%e for making arresta
        with or without    warrant, or when two or more warrants
         of arrest ar oaplases are served or oould havz p;t
         served on the same defendant on any one day.

              Artiole    1005, Vernon98 Annotated Code of Criminal
Prooedure,   allows oertaln reea for derinite          servloea   performed
whioh shall be paid the Sherirr or other peaoe oftioer                performing
the same services      In misdemeanor oases.       It will be noted that
Article   1020, supra, provides,      In effeot,     that the Sheriff      or
Constable serving process and attending           any examining oourt in
the examination ot any felony oaae shall be entitled               to suoh fees
as are rixed by law for almilar serrloes           in miedemeanor oases ln
oount y oourt , provided,     suoh ree shall not exoeed four dollars            in
any one 0880, and mileage aotuallg        and necessarily       traveled    In go-
ing to the plaoe of arrest        and ior oonveying the prisoner or
prisoners   to jail aa provided in Artiole         1029 and article       1030,
Code of Criminal Procedure, as the facts may be.               VJflliamson County
has a population      of 41,698 inhabitants      acoordlng to the 1940 Federal
Census.    Therefore,    Article  1029, Vernon’s Annotated Code of Crlmina:
Honor.lble H. is. Hodges,       pige 3                                                    495




Procedure,      is applicable     to said    oounty.


               ,irtlole 1055, Vernon’s          aotated      Code ot Criminal
Procedure,    provfdws, in part:

                 “The following     fee8    shall   be allowed       the
       s:lerfrr, or other peaoe oiiloer performing the
       snme servioerrin ml6demeanor cases, to be taxed
       agaInat     the defendant     on oonviotlon:
                 “1. For exeoutlng eaoh warrant or arretrt or
       copias,      or making arrest without warrant, two dol-
       LZS.
                 “2.   For summoning eaoh witness,           seventy-rive
       uents.
                 “3. For serving     any writ       not otherwise      provided
       ror,     one dollar.
              “4. For faking and approving each bond, and re-
       turning the same to the oourt h&se, when neoessary,
       one dollar and fifty  cents.~
                 “5.   For each oommltment or release,            one dollar.
                  ” * * lr c




                  Seotion 17 of Article        39120,     Vernon’s    Annotated   Civil
 Statutes,       reads, in part:

               “The term ‘preoinct    of’floers*   as used in this Act
        means  justioes   of the paace and oonstables.       * * * In
        counties wherein the county officers        named in this Act
        are compensated on the basis of an annual salary,          the
        state of Texas shall not be oharged with and shall not
        pay any fee or oominisslon to any precinct        orrioer ror
        ,vly services   by him performed,     but said officer   shall be
        -aid by the oountg out or the Officers’        Salary Fund such
        fees and commission as would otherwise        be paid him by the
        State for such services.”
                                                                                  _   496




             Artiole  102O. Vernon'e Annotated Code of Criminal
lrooedure,   wa8 asended in 1933, and Sootion 17 of r\rticle JQl2e
raa amended in 1927.      Therefore, deotion 17 of Article  39120
is controlling    a8 to whom shall pay the above mentioned fee8.
               In view of the roregolng           Statute8,    you are respect-
fully    advised that     It IS the opinion oi thlr department that
the Constable 18 entitled              to a fee for taking a bond in a relony
examining trial       and the amount of such fee IS )1.5O a8 allowed
by .rrtiole    1065, rupra;        the   oonstable 18 entitled       to 8uoh feea
as are fixed by law for rlmllar servicer                 in mirdemsanor oase8
in oountj Court for rerving prooess and attending any sxamlnlng
oourt in thS examfnatlon             oi any relony    oaee, provldod ruoh tee
shall not exoeed 44.00 In any one ease, and mlleags aotually
aad neceaaarlly       traveled       in going to the plaoe of arrest,         and
for conveying the prisoner or prisoner8 to jail                    ae provided in
.stiole    1029, Vernon'8 Annotated Code of Criminal Procedure.
Stated dlrrerently,         it    is the opinion of thls department that
in oountler      where the oountp orrlciala           axe compensated on a
salary baa18 and the preolnot orricer                 are oompeneated on a ree
basis, the constable           is entitled     to the statutory      reda for all
services     aotually    performed by hlm in feloay oaaea handled In
tke examining court, subjeot to the above mentioned llmltationr,
and said reea are to be paid the.oonstable                  by the oounty out of
the Oifloer8'       Salary Fund when fee8 would otherwise              be paid him
by the State ror suoh senloer.                 However, berore the oonetable
la entitled      to receive the above mentioned ieeo the defendant
mat     be tidloted     by the grand jury.           Under the provi8lo~8      0r
oticle     1019, Vernon'8 Annotated Code of Criminal Prooedure, and
Seotion 17, AFtlo            39120, Vernon*8 Annotated Civil Statutes              if
the derfendant 18 indioted             for a telony and upon oonvlotlon        hf8
punishment i's by rine or oontlnement in the oounty Jail., or by
both 8uoh rlne and oonflnement In the oounty                    all, or oonvloted
oi a misdemeanor, no oo8t8 rhall be paid b { de oounty to the
 constable.    -ill    ooet8 in 8uoh easer rhall            e taxed, assessed
and oolleoted       ar In mlrdeneanor         oaaea~     Under the provision8      of
irtlole     1027, Vernon'8 Annotated Code of Criminal Procedure and
Seotion 17 of Article            39120, Verponf8 Annotated Clvll 5tatute8,
 in aU oase8 where a defendant is indioted ror a relony but under
 the indictment he may be oonvloted Of a misdemeanor or a relonY,
 and the pUniShIW3Bt which may be assessed Is a rine,                   Jail sentence
 or both, such rlne and lmprlronment In Jail,                 the ooU%Yshall PaY
 no fees to the constable             except where the defendant Is indioted
 ror the orrense 0r murder, until the case has been finallY disposed
 or in the trial       oourt*

                                                           Yours   very   truly




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