HonorableJames?i?Strawn           OpinionNo. O-2003
CountyAttorney                    Re: Is an officerentitledto
wi1iacycounty                         half costs in mlademeenor
Raymondville,
            Texas                     odes where the dependentis
                                      com+ed~~. In justiceco+s
                                      or Is he only entitledto
                                      simh fees when defendantis
                                      convictedIn the county'court?

                                  (2) Who, if anyone,Is entitled
                                       to half costs for the com-
                 .,                    mitmentand releaseof a
                                       prisonerwhen there is only
                                       one jail in the countyand
                                       that jail is in charge of
                                       the sheriff?

Dear Sir:

    Pour requestfor an opinicmof this departmenton the above
statedquestionshas been received.

    We want to thank you for the able brief sub$ii&edwith ywir ?.nquiry
which..haa~been
              very helpful In passingupon your questlons.~.

    We quote from your brieB aa follows:

         "In this countythe queatiqnhes been rained that the
    counQ.ia not liable for half-.cpsta providedfor in ar!icle
    1055Gode of CriminalProcedurewhere the defendantis
    cogVf&tedand commitedfrom,a jtiticecourt. It~has'been
    conteded that since the articlesays 'Andto psy such
    half gf costs,the CountyClerkshall issuehis warrant
    on we CountyTreasurer,in favor of such officerto be
    paid out of the Road and Bridge Fund or other flmds
    not otherviseappropriated.'  that it vaa the intention
    of the legislatureto onlf providefees for convictions
    in the County Court. It is.argwd that if the officer~
    vaa entitledto half fees from the justicecourt, that
    the justicewould Leaus the warrant as he has all of the
    papers that show the amount,offees due and~is acquainted
    with.allthe facts."
Honorable Jam&'W.   Strawn, page 2 (0-2003)


        Article 1055, Code of Criminal Procedure, as amended
by House El11 No. 205, Acts of 1939, 46th~Legislature, reads
.as follows:
       "The county shall not be 1iabIe to the offiaer
   and witness having costs in a misdemeanor case where
   defendantpays his fine and costs.~ The'hounty .&all
   be liable for one-half of the fees of the officers of
   the Co~tit,~when the defendant falls to pay his fine
   and lays his fine out in the county jail or discharges
   the same by means of working such fine out on the
   county roads or on any county project. And to pay
   such half of costs, the County Clerk shall issue
   his warrant on the Gounty Treasurer in favor of such
   officer to be paid out of the Road and Bridge Fund
   or other -fundsnot otherwise appropriated."
       Article 1055, supra, does not in any way make any dis-
tinction between the county or justice court. It would seem,
to be exactly contrary to the intention of the Legislature
to allow'the fees in the county court and'not inthe justice
court. We believe that it was the Intention of the'Leg.isla-
ture to provide some compensation for officers where they
secure convictions against defendants who are unable to pays
their fines and costs In misdemeanor cases but staisfy or
discharge the same by working such fines out on the county
road~or on any~county project or lay the same out In the,
county jail. The issuing of the warrants by the county clerk
for half costs as provided by Article 1055, supra, is a min-
isterial duty of the county clerk and said provision In no
way restricts the application of said article to cases tried
in the county court.
       Article 3748 of the Revised Civil Statutes of Texas,
1895, read as follows:
       "Whenever a convict has been committed to jail
   in default of payment of fine and costs adjudged against
   him, has satisfied such fine and cost in full by labor
   in the workhouse, on the county farm, on the public
   roads of the county orupon any public works of the
   county, said county in whleh said conviction washad
   shall be liable to each~officer and witness having
   costs In the case against said~convict for only one-
   half of such costs, and the county judge of said county
   shall issue his warrant upon the county treauurer in
   favor of~each officer and witness fcrrone7half of'all
   such legal costs as may'have been taxed up against
   said convict, not to include commissions, and the same
.        -




    Honorable James W. Strawn, page 3 (o-2003)


        shall.be p&fi'out of~:the~~oioad~~~dI-Bridge
                                                 Fund of
        the county or out of any other county funds not other-
        wise appropriated."
           The court, in the case of Fears v. Ellis County, 49
    S.W. 139, In construing Article 3742, supra, among other
    things, held In effect that the county attorney was entitled
    to half fees for convictions in both county and.justice
    courts.

           In answer to your first question, you are ,respectfully
    advised that it is the opinion of this department that any
    officer who is entitled to half costs under Article 1055, Code
    of Criminal Procedure, supra, is entitled to such costs regard-
    less of whether the case is tried in the county or justice
    court.
           Referring to your second question, we quote from Texas
    Jurisprudence, Vol. 38, pp. 431, 432 and 433 as follows:
            "The ancient officer of sheriff and constable
        are recognized by our Constitution and statutes. From
        the statutory provisions it appears that process of all
        the courts is addressed to the sheriff of the county
        and to the constable of the precinct, and that the
        power and duty of executing process are imposed equally
        on both. Also, sheriffs, constables and marshals are
        peace officers, and, as such, are authorized to execute
        criminal process and to make arrests without warrant in
        proper cases. . . .
            "A constable is an administrative officer elected
        to serve in a precinct In which a justice court func-
        tions, having functions analagous to those of the
        sheriff. It Is his duty to execute and return accord-
        ing to law all process, warrants and precepts to him.
        directed and delivered by any lawful officer, attend
        upon all justice courts held in his precinct and per-
        form all such other duties as may be required of him
        by law. He is authorized to execute process issuing
        out of the county and district courts as well as of
        the justice court of his precinct, and this authority
        extends to process delivered to him by the plaintiff
        in the writ or by his attorney, as well as to process
        handed to him for execution by the clerk of the court
        or sheriff."
           Article 6885,   Vernon's Annotated Civil Statutes,   reads
    as follows:
Honorable James W. Strawn, page 4 (O-2003)


       "Each constable shall execute and return accord-
   ing to law all process, warrants and precepts to him
   directed and delivered by any lawful officer, attend
   all justice courts held in his precinct and perform
   all such other duties as may be required of him by
   law."
         Article 787, 789, 788, 795, 796, 797, 783 and Article
1067,   Code of.CrimLnal Procedure reads as follows,:
       YArt. 787.  Pay or jail.
       When a judgment has been rendered against a defen-
   dant for a pecuniary fine, if he is present, he shall
   be lmprosioned In jail until discharged as provided by
   law. A certified copy of such judgment shall be suffi-
   cient to authorize such imprisonment.
       "Art. 789.  Capias shall recite what.
       Where such caplas issues, It shall state the
   rendition and amount of the judgment and the amount
   unpaid thereon, and command the sheriff to take the
   defendant and place him In jail until the amount
   due upon such judgment and the further costs of col-
   lecting the same are paid, or until the defendant is
   otherwise legally discharged.
       "Art. 788.  If defendant is absent.
       When a pecuniary fine hasbeen adjudged against
   a defendant not present, a capias shall forthwith be
   issued for his arrest. The sheriff shall execute the
   same by placing the defendant in jail.
        "Art. 795. Authority for imprisonment.
        When, by the judgment of the court, a defendant
    is to be imprisoned in j,ail,a certified copy of such
    judgment shall be sufficient authority for the sheriff
    to place such defendant In jail.
         “Art o 796. Capias for imprisonment.
         A capias Issued for the arrest and'commltment of
    one convicted of a misdemeanor, the penalty of which
    or any part thereof is imprisonment in jail, shall
    recite the judgment and command the sheriff to place
    the defendant in jail, to remain the length of time
    therein fixed; and this writ shall be sufficient to
    authorize the sheriff to place such defendant In jail.
        "Art. 797. Discharge of defendant.
        A defendant who has remained in jail the length
    of time required by the judgment shall be discharged.
        .




Honorable James W. Strawn, page 5,(C)-2003)


   The sheriff shall return the copy of the judgment,
   or the capias under which ~the defendantwas imprisoned,
   to the proper court, stating how it was executed.
      "Art. 783.  As to fine.
       When the defendant is only,finedthe judgment
   shall be that the State of~Texa~sr$i?overof the-Tdefen-
   dant the amount of such fine and.all.costs of the,.-pro-
   secutlon, and that the,defendant, .if:'present,
                                                 be ~com-
   mltted to jail until such fine ~andz~costs
                                            are paid; or
   if the defendant be not present.:,that-acapias..,forth-
   with issue, commanding thesheriff;to,arrestthe defen-
   dant and commit hlm~to jall,~untll~such~fine~and,costs
   are paid; also, that.executionmay 3ssue against the
   property of such defendant forthe~ amount-of such ,fine
   and,costs.
       "Art. 1067.  Fees of~peade';:officers.
       Constables, marshals orother'peace off&k-who
   execute process and perform :se+ces. four,lust$ces’ln
   criminal actions, shall receivethe same feesallowed
   to sheriffs for the same services.
       Article 1065,             Cod.e~of;Crlminal'-,Proaduj?e(reads
                                                                 in
part as follows:
       "The following fees shall be~..allowed:the
                                                sheriff, or
   other pem officer performing~the.:sameserclces in mis-
   demeanor cases, to be taxedi,againstthe defendanton
   conviction.
   II
            .   .   .



   “5.              par each.commitment ,or release,,~.one
                                                         dollar."
       The statutes prescribing:~fees~:,for"~cert8ln.6fficers
                                            ,.
for definite services performed.authorisesthose officers
who are compensated on a ,fee,,bas'isto ,.recelve:a
                                                  ,deflnite
fee for a certain servLce,performed and Lwhenany officer
performs any such duty he is entitled to the specific fee
provided for such service.     ;,' i ~.
       By virtue 'of the foregoing statutes..you   are respect-
fully.advised that it is'the~~lnlonof       this department that
a constable has the same 1egal"power and authority to execute
a commitment or release, as a sheriff, when the release or
commitment is directed or addressed to the sheriff,of the
county and to the constable of the precinct. Therefore, the
officer executing the commitment or'reIeaee'would be entitled
to the fee provided by law for executing such commitment or
release.
Honorable James W. Straw&   page~6 (o-2003)


       Trusting that the foregoing fully answers your Inquiries,
we remain'
                                     Yours   very truly,
                                ATTORNEXOENEFUL OF TEXAS



                                By
                                             Ardell Williams
                                                  Assistant

AW:jm
