Honorable Edgar Pie11
County Attorney
Guadalupe County
Seguia, Texas

Dear &.   Pfeil:                   .'OpialonNo. o-963
                                    R6:,C6n&table1sfees in traffic
                                        cases.
          Your request for our oplnloa upon several questions has
been received by this department.We quote from your letter as
follows:
          "The questions hereinaftersubmitted'for
     your opinion arise.out of the following
                                      .,.    fact
     altuation:
          "A constable,without any other witnesses
     being present, stops a .personon the highway
     for speeding or some,other traffic violation
     and gives the motorist an appearance ticket,
     which dlrects'themotorist to appear,before
     the J.P. at a future date for the violation
     of the speeding law. The officer then permits
     the motorist to drive on his way, and several
     days later, the motorist writes to the~J.P.
     Inquiring as to the amount of the costs if he
     pleads guilty and the J.P. fines h%m $1.00 and
     costs.
           "Question#1: Has the motorist been ar-
      rested? Art. 239 (C.C.P.)provides as follows:
          n1A person Is said to be arrested when
     he has been actually placed under restraint
     or taken Into custody by the officer or persons
     executing the warrant of arrest'.
           "(a) Is the stopping of the motorist and
      giving him an appetiranceticket an ar.rest,as
      the term 'arrest'Is defined In Art. 239, en-
      titling the officer to the $2.00 fee for a,n
Honorable Edgar Pfell, Page 2, No. O-963

     arrest without warrant?
          "(b) Would the officer not be required to
     take a bond before permitting the motorist to
     go on his way, before there can be an 'arrest'
     as defined In Art. 2397
           "Question#2: What does the off'laerhave
     to do to be entitled to collect the $1.50 for
     taking and approving a bond? Would he be entitled
     to charge $1.50 if he has the motorist sign a bond
     out on the highway without requiring sureties to
     sign? Does the appearance ticket, If signed by the.
     motorist and such signed copy given to the of-
     ficer  amount to a bond, entitling the officer to
     charge the $1.50 fee?
           "Question#3: Is the constable entitled to
      charge $2.00 for a ~cormxltmentand release’ where
      he permlts the motorist to go on,hls wag after
      the motorist signs a bond out there on the road
      and then goes on his way?
           "Question3A: Does Art. 34&(P.C.), which
      provides as follows:
           "A person is 'legallyconfined la 'jail'or
      'legallydetained in custody' when be has been
      committed or arrested upon a legal warrant, or
      arrested lo any legal manner.'
      mean that an officer can charge $2.00 for 'corn-
      mittlng and reLeasingIa defendant, when the'of-
      ficer merely arrests the defendant, takes him to
      the Sheriff's office and keeps him in custody
      and locks him in a little room In the Sheriff's
      office for a few hours until someone makes bond,
      for him and then releases him without ever taking
      him to jail?
           "Art. 1065 (C.C.P.) provides that an officer
      Is allowed to charge a fee of one dollar for
      'each commitment or release'.What must the officer
      do in a m!.sdemeanorcase to be entitled'to charge
      $1.00 for ~aommittlnn'z percqn? %ust,he commit hlrii
      to iall or merely to the officer's custody? can en of-
      ficer charge $1.00 for a commitmentbefore conviction,
      or does the term fcommiti~ent.’ as nsed ,lnArticle 1065
      mean a commitmentafter conviction,elther to.lay out
      the fine and costs or to serve a jail sentence...When
      Is the constable entitled to a release fee?"
Honorable Edgar Pfell, Page 3, No. O-963

           Article 239, Code of Criminal Procedure of Texas,
ppovldes that a person ia said to be arrested when he has been
actually placed under restraint, or taken Into custody by the
officer or person executing the warrant of arrest.
           Artlale 792, of the Penal Code of Texas, reads aa
follows:
           "violation of promlse to appear.- In
      oase of any person arrested for violation
      of the preceding articles relating to speed
      of vehicles, unless such person so arrested
      shall demand that he be taken forthwith be-
      fore a court of competent jurladlctlonfor
      an Immediate hearing, the arresting officer
      shall take the license number, name and make
      of the car, the name and address of the
      operator or drlver thereof, and notify such
      operator or clrlverin writing to appear be-
      fore a designated court of competent jurls-
      diction at a tlme and place to be specified
      in such written notice at least five days
      subsequent to the date thereof. and upon
      the.promise la.~ri~~~ng~~of~~~such
                                     person
      to &Dbear at such time and place, sLch of-
      ficer shall forthwith ~releasesuch person
      from custody. Any person willfully violating
      such promise, regardless of the disposition
      of the charge upon which he was originally
      arrested, shall be fined not less than five
      nor more than two hundred dollars."
      In answer to your questions (a) and (b) of
Question no. 1, the aetermlnatloflof~whether or not the motorist
was under arrest by the constable depends upon the following
issue of fact:
           'If the motorist had attempted to
      leave at the time the constable stopped him,
      ;,"z;f,theconstable have permltteclhim to'

      You are respectfullyadvised that'It Is the opinion of this
department that If the above question be answered In the negative,
the motorist was under arrest. If the above question be answered
In the affirmative,the motorist was not under arrest. You,are
further respectfullyadvised that It is the opinion of thts depart-
ment that if the above question be answered In the negative the
driver was under arrest, regardless of whether or not the con-
stable took the moztorls*'sbna.
                                                                r...   . .




Honorable Edgar Pfell, Page 4, No. O-963

      Article 1065, Cdde of Criminal Procedure of Texas, reads,
In part, as follows:
           "The following fee shall be allowed
      the Sheriff, or other peace officer per-
      forming the same services in misdemeanor
      cases, to be taxed against the defendant
      on conviction8
           wl. For executing each warrant of
      arrest or caplas, or making arrest without
      warrant, $2.00.
               “2.   ,** +

               “3.    *i*

           “4.  For taking and approving each
      bona, and returning the same to the court-
      house, when necessary, $1.50e
                       For each commitment or release, $1.00.
      l   **   ‘2
     Article 273, Code of Crlmlnal Procedure of Texas, reads as
follows:
           "Requisitesof a bail bond.- A bail bond
      shall be sufficientIf It contafn the following
      requisites:
           "1. That It be made payable to the
      State of Texas.
           "2. That the obllgors thereto bind them-
      selves that the defendant will appear before
      the proper court or magistrate to answer the
      accusation against him.
           *3.  If the defendant is charged with a
      felony, that.lt state that he Is charged wlth
      a felony. If the defendant Is charged with a
      misdemeanor, that It state that he 1s charged
      with a misdemeanor.
           ” 4 . That the bond be signed by name or
      marked bg the principaland sureties. (Under-
      scoring        ours.)
      . . .-   -




Honorable Edgar Pfell, Page 5, No. O-963

           '5. That the bond state the time and
      place, when and where the accused blnda
      himself to appear, and the court or magls-
      trate before whom he la to appear. In stating
      the time, It la sufficient to specify the
      term of the court; and In stating the place,
      it Is sufficient to apeclfy the name of the
      court or magistrate, and of the county.’
     Article 277, Code of Crlmlnal Procedure of Texas, reads as
follows:
            “How ball taken. - Every court, judge,
     magistrate or other officer taking ball shall
     require evldenoe of the sufflolency of the
     security   offered; but, In every case, one
     surety will be anfflolent,If it be made to
     appear that such surety Is worth at least
     double the amount of the sum for rhlch he Is
     bound, exclusive of all property excepted by
     law from execution, and of debts or other
     encumbrances;that he Is a resident of this
     State, and has property herein liable to ex-
     ecution worth the sum for which he Is bound.”
      In answer to your Question Bo. 2, you are reapectfully~ ad-
vi&d that It is the oplnlon of this’deparhent that before the
officer would be entitled to collect $1.50 for taking and ap-
proving a bond, that l&should comply wlth~Art1cl.e 273 and Article
277, supra, of the Code of Crlmlnal Procedure of Texas. You are
further rsupectfullyadvised that It 1s the opinion of this depart-
ment that If the constablebaa the motorist sign a bond out on the
highway without requiring sureties to sign, that the constable would
not be entitled to charge $1.50 for taking and approving a bond.
You are further respectfullyadvised that it Is the opinion of this
department that the appearance ticket, if signed by the motorist, and
such signed copy given to the officer, la net a bond, and does not
entitle the officer to charge the $1.50 fee for taking and ap-
proving a bond.
      Article 344, Penal,Code ,ofTexas, provides that a parson la
legally confined In jail, or legally detained In custody, when he
has been committed or arrested upon a legal warrant, or arrested
in any legal manner.
      ConferenceOpinion No. 2725, of this department, rendered
February 13, 1928, by H. Grady Chandler and Galloway Calhoun,
Assistants Attorney General, holds that a commltmeatfor which
a peace officer Is allowed a fee of $1.00 Is for executing an order
Honorable Edgar Pfell, Page 6, No. O-963

of the court dire&lug that a person be placed In jail, and~an of-
ficer la not allowed to charge such fee ln the absence of such order;
that a capias or warrant Is not a commitmentfor which a fee 1s al-
lowed; that the judgment of a court IS not, within Itself, a commlt-
ment for which a fee Is allowed; and that a release for which a
peace officer la allowed a fee of $1.00 is for releasing or dlscharg-
lug a defendant from the force and effect of a judgment restraining
him.
      ConferenceOpinion No. 3058, of this department,follows COW
ference Opinion No. 2725, above referred to, and holds that the con-
stable Is entitled to a release fee if he releases the defendant
from the force and effect of a judgment restraininghim.
      Article 1011, Code of Crlmlnal Procedure of Texas, provides
that "no ltem of costs'shallbe taxed for a purported service which
was not performed, or for a service for which no fee 1s expressly
provided by law."
      This department has ,repeatedlyruled that constablesand
other peace officers are not entitled to fees except for services
performed,as outlined by the fee statute. See Opinions Nos. O-106,
o-768, O-1160, and many other opinions of this department.
      In answer to your Question No. 3, you are respectfullyadvised
that it is the oplnlon of this department that the constable is not
entitled to charge $2.00 for a "commitmentand release", under the
facts stated therein.
      In answer to your various questions under Questlon No. 3A of
your request, you are respectfullyadvised that It Is the opinion of
thls department that before an officer Is entitled to charge $1.00
for a commitment In a misdemeanor case, that there must be a legal
order of commitment issued by the court upon a valid judgment, and
that the officer muet serve such commitmentby placing the defendant
in jail, as directed in the commitment.
      You are further respectfullyadvised that It is the opinion
of this department that an officer cannot legally charge $1.00 for
a commitmentbefore conviction;and that the term 'commitment" as
used In Article 1065, means a commitmentafter convictionof the
defendant,either to lay out his fine and costs, or to serve a jail
sentence, or both.
      You,are further respectfullyadvised that it is the opinion of
this department that an officer may not legally charge for more than
one commitmentin any misdemeanor case, or for more than one release
in any misdemeanor case, and that he cannot charge either of these
fees unless he actually earns said fees as required by law.
      You are further respectfullyadvised that it is the opinion
Honorable Edgar Pfell, Page 7, No. O-963
of this department that If a constable or other officer has a
defendant in his custody, and the constable or other officer re-
leases the defendant from the force and effect of a judgment re-
stralnlng the defendant, then, in that event, the constable or other
officer would be entitled to a $1.00 release fee.
      We are eucloslng herewith copies of Opinions Nos. o-261 and
0-5058, of this department,which we feel will answer some of
your questions more In detall.
      We wish to thank you for the very able brief you submitted
to US, which has aided us greatly In the preparationof this
opinion.
      Trusting that this satisfactorilyanswers your Inquiry,
and with best regards, we are
                                           Yours very truly
                                       ATTORNEY GENERAL OF TEXAS


                                       By /s/ Wm. J. Fanning
                                          Wm. J. Fanning
                                              Assistant
WJF:FG-BK
                                  ~~APPROVED
APPROVED AUG. 7, 1939               OPINION
/s/ Gerald C. Mann                COMMITTEa
ATTORNEY GENERAL OF TEXAS
