            THE               ORNEY           GENES




                                              This Opinion
                                            Modifies Opinion
                                            # O-1981
      - ~S%cey    S. Wslker
County Attorney
Walker County
Huntsville,  Texas

Dear Sir:                             Attention:    Robert B. Smither

                                      Opinion No. O-4680

                                      Re:    Under the facts submitted IS the
                                             sheriff   of Walker County entitled
                                             to collect   his fees for the ~     i
                                             transportation   of defendant,
                                             under Article 567-b, Section 5,
                                             Vernon's Annotated Penal Code,
                                             from the State or if the defendant
                                             should be required to remain in
                                             the county jail until he has
                                             satisfied   such costs?

Your letter of June 20, 1942, requesting the opinion       of this   department
on the above stated question reads as follows:

                                      "In Re:State vs. Willian B. Palmer,
                                             CountyCo~t,,Walker   County,
                                             Texae
     "In the above case the defendant has pleaded guilty:,to
     the offense of passing a hot check in the amount of
     $10.00 and his punishment assessed at one day in
     jail and costs of Court.   The defendant was located
     at New Braunfels; Texas; and held there for the
     sheriff  of Walker County, Texas, who went after the
     defendant and transported him to his county.

     "The question is whether the sheriff  of Walker County
     Is entitled  to collect his fees for the transportation
     of the defendant under Article 567-b, Section 5 fran
     the State or if the defendant should be required to
     remain in the County Jail until he has satisfied    such
     costs?

     "We are unable to find any cases where this       question
     has been construed by the Courts.
Eon. Dewey S. Walker, Att’n:         Robert B. Smither,    Page # 2      O-4680



      “It eppears the only method by which the sheriff    could
      collect  his fees from the State would be by the district
      court approving an account for the same as provided in
      Article  1030 of the Code of Criminal Procedure,    however,
      in view of Article   1019 of the Code of Criminal Procedure
      it appears likely the district    court would not be authorized
      to approve the sheriff’s   account and the defenr’ant would
      be required to remain in the county jail until     all costs
      were satisfied.

      “E x parte Shaffer, 92 S.       W.   2d 250; Overstreet   vs.   State,
      15 5. W. 2d 1039.”


In opinion   No.   O-1981,    this   department held,   among other things,       that:
      ” . * . Officers  issuing and serving process in misdemeanor
      cases arising under Article 567b of the Penal Code are
      entitled  to such fees ~8s they would be in any other mia-
      demeanor case . . . s
      ”. * . *

      where a defendant is convicted of a misdemeanor offense
      under the above mentioned article    and is unable to pay
      his Pine and costs and satisfies    the ssme working on public
      works or remaining in jail as provided by Articles    785-797,
      inclusive,   of the Code of Criminal Procedure, the officers
      or witnesses would be entitled    to collect from the county
      one-half fees as In other misdemeanor cases as provided
      by Article 1055, of the Code of Criminal Procedure. Bearing
      in mind that officers    issuing and serving process are only
      entitled   to the same fees and mileage as in other misdemeanor
      ca*es. qe enclose a copy of this opinion herewith.

With reference to opinion No. 1981, Supra, it will be noted that It is
stated in part; “the officers or witaeaaeswould be entitled  to collect   from
the county one-half fees”,   etc.  The word ‘witnesses” was ina.lvertently
inserted.   Witnesses are not entitled  to any fees under Art. 1055 C. C. P.
Therefore,  opinion No. 1981, is modified accordingly.

Article   235,   Vernon’s    Annotated Code of Criminal Procedure,        provides:

      “One arrested for a misdemeanor ahall be taken before a
      magistrate of the county where the arrest takes place who
      shall take bail and transmit immediately the bond so taken
      to the court having jurisdiction of the offense.”
Hon. Dewey S. Walker,   Att'n:     Robert B. Smither,       Page # 3   O-4680



You do not state in your letter whether or not the provisions      of Article
235, aupra, were complied with.      However, for the purposes of this opinion
we assuae that the provis,ions of this statute were complied with, and
that the defendant did not enter into and execute a bail bond and the
defendant was committed to jail of the county where he was arrested under
Article  236, Vernon's Annotated Code of Criminal Procedure, and the
magistrate committing him notified     the sheriff of Walker County in which
the offense was alleged to have been committed of the arrest and com-
mitment, and the sheriff   receiving   the notice went for the defendant
and brought him before the proper court as authorized by Article 237,
Vernon's Annotated Code of Criminal Procedure.

In view of the foregoing,    you are respectfully    advised that it is the
opinion of this department that the sheriff       of Walker County is not
entitled  to collect  his fees for the transportation      of the defendant
from the State and that the defendant should be required to remain in
the county jail until he has satisfied     such costs at the rate of $3.00
per day.    (Ex parte Ferguson, I.23 S. W. (2d) 408 and Ex parte Patterson,
132 5. W. (2d) 411.)     And as the county officials    of Walker County are
compensated on a fee basis the sheriff would be entitled        to collect
from the county one-half his mileage and other fees as in other misdemeanor
cases as provided by Article    1055, Code of Criminal Procedure.

Trusting   that the foregoing    fully   answers your inquiry,      we are.

                                               Yours very truly

                                         A!ITORNEYGEWEBADOF
                                                          TEXAS

                                          s/   Ardell    Williams
                                                        Assistant

AW:CO/Ldw

APPROVED
       JUG 8, 1sQ
s/ GWALDC. MANN
ATTORNEY
       QXEBALOFTEXM

APPROVED
OPINION
COMMITTEE
BY B. W. B.
CHAIRMAN
