                     IQ&I 31, 1988



Honorable Mike Driscoll        Opinion No. JR-880
Harris County Attorney
1001 Preston, Suite 634        Re: Authority   of a commis-
Houston, Texas 77002           sioners court to set fees
                               for the execution of criminal
                               warrants  by a    sheriff  or
                               constable  (RQ-1060)
Dear Mr. Driscoll:

     You have requested an opinion from this office on the
following question:

          May commissioners courts set fees for the
       execution of criminal warrants by the sheriff
       and constable?

     In 1981, the legislature    enacted article  3926a,
V.T.C.S. (since codified as section 118.131 of the Local
Government Code), reading:

          (a) The commissioners,   court of    each
       county may set reasonable fees to be charged
       for services by the offices of sheriffs  and
       constables.

          (b) A commissioners  court may not        set
       fees higher than is necessary to pay         the
       expenses of providing the services.

Acts 1981, 67th Leg., ch. 379, 51, at 1001.

     Subsection 2(a) of the      bill that enacted article
3926a contained the following    provision:  "Fees provided
for sheriffs and constables in   other laws in conflict with
the provisions of this Act are   repealed to the extent they
conflict with this Act." Id.     at 52. But the bill also
stated, in section 3(b):

          Until a commissioners  court prescribes
       different fees pursuant to Article   3926a,
       Revised Civil Statutes of Texas, 1925, the




                           p. 4296
Honorable Mike Driscoll - Page 2    (Jh-880)


                                                               ?


       fees charged by a sheriff or constable   are
       those provided   by the law in effect on
       August 31, 1981. Fees charged by a sheriff              -.
       or constable for   services performed before
       the effective date of this Act are governed
       by the law in effect at the time the
       services were performed.

     Therefore, by the express terms of the bill enacting
article   3926a, if laws governing    the   collection   of
sheriff's fees in criminal cases were in conflict with the
new law, they were repealed to the extent of the conflict,
but onlv Insofar as a oarticular      commissioners   court
prescribed different fees. They were to remain in effect
in those counties where no different fees were prescribed.

     At the time article     3926a was enacted,    articles
53.01, 53.02 and 53.04 of the Code of Criminal Procedure
specified particular   charges  (applicable throughout   the
state) to be made for services performed by peace officers
in misdemeanor   cases. '~In 1985, the legislature     first
amended article 53.01, m    Acts 1985, 69th Leg., ch. 239,
99, at 1183, and then, in a Wonsubstantive       revision,"
relocated the substance of articles 53.01 and 53.04 (prior
to amendment)  to chapter 102 of the Code of Criminal
Procedure as article   102.001 without expressly  repealin
the two articles   from which the provisions were taken. 9
m   Acts 1985, 69th Leg., ch. 269 at 1300. Articles 53.01
and 53.04 were eventually repealed in 1987 by the act that
conformed article 102.001 to the previous 1985 amendments.
@.g Acts 1987, 70th Leg., ch. 167, 54.01(b), at 2647.

     In 1987, as part of a nonsubstantive recodification,
article 3926a was incorporated into the Local Government
Code as section 118.131 thereof with no significant change
in language. m    Acts 1987, 70th Leg., ch.   149, at 1397,
1699, 2548. The same legislature had previously amended
article 3926a. m    Acts 1987, 70th Leg., ch. 143, at 640.
Although the earlier changes were not expressly     carried
forward by the nonsubstantive   revision that transferred
the statute to the Local Government Code, they are to be
read as a part of the encoded provision.    See Gov't Code



      1. Article 53.02 of the Code of Criminal Procedure
was repealed by the 69th Legislature.   Acts 1985, 69th
Leg., ch. 269, 55, at 1307.




                          p. 4297
    Honorable Mike Driscoll - Page 3 (-880)




    §311.031(c) (repeal of article by code does not affect
    amendment of the article by the same legislature). None
    of these changes affect our answer.

         In order to answer your question, we need not deter-
    mine the relationship  between the general provisions    of
    the 1981 law giving power to commissioners courts (former
    article 3926a, V.T.C.S., now section 118.131 of the Local
    Government Code) and the specific provisions (now found in
    article 102.001) of the Code of Criminal    Procedure which
    were in force at the time former article         3926a was
    enacted. We need not do so because we have concluded that
    the provisions now found in section 118.131 of the Local
    Government Code cannot constitutionally     reach fees of
    sheriffs or constables  assessed as costs in misdemeanor
    criminal cases.

          In Texas, costs in misdemeanor    criminal cases are
    assessed as part of the punishment.   J& carte Carson, 159
    S.W.2d 126 (Tex. Crim. App.~ 1942): Ex carte Mann, 46 S.W.
    828 (Tex. Crim. App. 1898). See also Attorney        General
    Opinion JM-443 (1986). a      United States v. Palmer, 809
    F.2d 1504 (11th Cir. 1987) (holding imposition of costs as
P   punishment   to   be constitutional).     A law    allowing
    different costs to be assessed in different    counties for
    the same penal offense would have the effect of allowing
    the penalty for state-defined   crimes to vary from county
    to county and would violate both "due process@B and "equal
    protectionl' constitutional   rights.   U.S.   Const.,   5th
    Amend., 14th Amend.: Tex. Const., art. I 553, 19; Ex oarte
    !Z;son, sunrg. See Memet v. State 642 S.W.2d      518 (Tex.
        . - Houston [14th Dist.] 1982, bet. ref'd).    S    also
                        132 S.W.Zd 408 (Tex. Crim. App.eT939);
    W#               e, 8 S.W.2d 134 (Tex. Crim. App. 1928).

          If we could reasonably construe article 3926a and its
    later expression, section 118.131 of the Local Government
    Code, as not intended to embrace criminal matters,       we
    would do so in order to avoid suggesting        unconstitu-
    tionality, but there is nothing on the face of either of
    them. to indicate that the scope was intended to be
    anything   less than all-embracing.     Article  3926a was
    couched in language that would normally be considered
    inclusive of all Hservices by the offices of sheriffs and
    constables," and, although its application to fees charged
    in criminal cases was not discussed, it was so considered
    in Attorney General Opinion JM-193    (1984). Nothing   now
    found in section    118;131 of the Local Government    Code
    would alter that view. The retention of articles      53.01




                              p. 4298
Honorable Mike Driscoll - Page 4 (JM-88.0)


                                                              -.


and 53.04 of the Code of Criminal Procedure (and the later
incorporation of article   102.001 in Title    2 thereof)
respecting such fees indicates no intention to limit the
eventual scope of article 3926a or section 118.131 because
such statutes,  if "in conflict" with article 3926a     (01
section 118.131), were intended ~to have continuing effect
only where a commissioners     court failed   to use its
"article 3926a" powers. Such statutes were intended to be
of no effect in counties fully employing such authority.

     A different argument about its intended    scope could
be made, perhaps,  if the legislative history of article
3926a (or its successor) suggested   a legislative   intent
that the statute apply only to civil proceedings, but the
available legislative history shows affirmatively   that it
was &ended   to embrace fees in criminal proceedings     as
well as in civil proceedings.  The Bill Analysis regarding
House Bill No. 1617 (the 1981 bill enacting former article
3926a), prepared for the House Committee on Security and
Sanctions of the 67th Legislature, states:

       BACKGROUND:
       At present,    the legislature  sets the fees
       charged
         . .     for   the  delivery  of   civil  and
             & papers by a sheriff or constable,
       and provides one cost for every county      in
       the state.     The legislature    also decides
       the merits    of such issues as 'attempted
       service. ) The commissioners    court of each
       county does not have the discretion         of
       setting m       fees, even though the cost of
       serving papers varies from county to county.



       This Bill would place the responsibility
       of setting  fees  charged by sheriffs     and
       constables under the local control of the
       various commissioners  courts.    These  fees
       would not be set higher than the actual cost
       of the services provided.   (Emphasis added.)

a   Code Crim. Proc. art. 102.009 (formerly article 53.09)
(criminal costs in class C misdemeanors    set by commis-
sioners court in populous counties).

     We are compelled to conclude that article 3926a (now
section 118.131) was intended, j&er alia, to control the




                          p. 4299
 ,
     Honorable Mike Driscoll - Page 5 (X4-880)



,-


     setting of fees for sheriffs and constables in criminal
     proceedings, and that insofar as it or its successor
     attempts to do so, it is unconstitutional.    gx oarte
     Carson, i5i!&sa.
           However, a statute found to be unconstitutional      in
     part need not fall in its entirety if its provisions are
     not so connected in subject matter, so interdependent,
     or otherwise so bound together that it can be presumed
     the legislature would have passed the law devoid of its
     unconstitutional aspect.    $8.9 Countv  School Trustees   of
     Orana eCout    v.
     School District No. 8, 153 S.W.2ds434 (Tex. 1941). In its
     original configuration,   the 1981 bill enacting     article
     3926a reouired commissioners   courts to set sheriff's    and
     constable's fees. As the bill analysis     shows, however, a
     subcommittee amendment   changed the phrase,     "shall set
     reasonable fees,"    to read,  Iv= set    reasonable   fees."
     Bill Analysis     to H.B. No. 1617, prepared      for House
     Committee on Security and Sanctions,      67th Leg.   (1981).
     Thus, the legislature   did not command that commissioners
     courts set all fees for sheriffs and constables,          nor
     command that if any particular       fees were set by the
     commissioners court, all others also must be set by that
     body. It follows that the act was passed with the
     understanding (though not the expectation, perhaps)      that
     every county might decline to set such fees in criminal
     cases.

          In other words, the legislature exhibited     an intent
     to enact former article 3926a even if the statute were
     never to be applied to the fees of sheriffs and constables
     in criminal cases. The 1985 retention of the recodified
     provisions now found in article    102.001 of the Code of
     Criminal Procedure  showed a legislative willingness     and
     expectation that those provisions would apply where former
     article 3926a (for whatever reason) was not utilized.     We
     do not believe section 118.131, the successor       statute,
     must be declared unconstitutional in its entirety merely
     because its application   to fees in misdemeanor    criminal
     cases would unconstitutionally   violate *'due process"  and
     "equal rights" provisions.      Its application    to civil
     matters is unaffected.

          Inasmuch as section 118.131 may not be constitu-
     tionally read to allow commissioners   courts to set fees
     for the execution   of criminal warrants   in misdemeanor
     cases by the sheriff or constable,  any potential conflict
     that would have otherwise existed between  section 118.131




                               p. 4300
Honorable Mike Driscoll - Page 6    (JM-880)




and statutes purporting to govern the fees of sheriffs and
constables in such criminal    cases is eliminated,    The
general repealer of Vonflicting   statutes"  found in the     --.
bill that enacted former article 3926a will not apply,
therefore, and the provisions of article 102.001 of the
Code of Criminal  Procedure will control the fees to be
charged in misdemeanor cases.

     We are aware that article 102.001 was amended in 1987
to limit its applicability to counties with less than two
million population, and that article 102.011 of the Code
of Criminal   Procedure was enacted to specify different
costs for larger counties. $&= Acts 1987, 70th Deg., ch.
821, at 5695. For reasons already explained,       however,
charges for the services of peace officers assessed      as
costs in misdemeanor    criminal prosecutions   for state-
defined offenses must be uniform throughout the state to
escape condemnation on constitutional grounds.     Inasmuch
as the only purpose of the 1987 act was to accomplish an
unconstitutional objective, i.e., to specify~ different
cost charges    in   misdemeanor criminal    cases to    be
applicable for the same state-defined offense in different
counties, depending   on population,  it cannot be given
effect, and article    102.001 remains applicable   in all
counties.

     Your request   for an opinion, we realize,   is not
limited to misdemeanor  situations.  It asks about "fees
for the execution of criminal warrants," not merely about
fees in misdemeanor cases.

     Although the result   is the same, the analysis with
respect to sheriff's and constable's fees in felony cases
is somewhat different.   Former Code of Criminal Procedure
articles 1018, 1029, and 1030 governed      fees in felony
cases, but were expressly repealed pro forma by the "non-
substantive"   1985 act that rearranged     the provisions
previously found in articles   53.01 and 53.04 of the Code
of Criminal Procedure.   See Acts 1985, 69th Deg., ch. 269,
at 1300, 1307.

     In felony cases,  fees and costs were formerly paid
initially by the state pursuant to articles 1029 and 1030,
but article 1018 of the code made their reuavment a charge
against convicted  defendants.   (Articles 1029 and 1030      I

imposed different  fees for sheriffs and constables     in
felony cases, depending on (1) the number of votes cast in
presidential elections in the county and ('2) the popula-
tion of the county.)   However, such repayments  have been




                          p. 4301
     Honorable Mike Driscoll - Page 7 (JM-880)



:-

     unnecessary  since 1949,    when it became   statutorily
     forbidden for the state or a county to pay a fee to an
     officer compensated  on a salary basis.  .&=Acts   1949,
     51st Leg., ch. 257, 51, at 474.

          Despite a design to operate in a way declared above
     to be unconstitutional for OOegual protection" and "due
     process'* reasons in misdemeanor cases, these   "felony" fee
     statutes were never in nari materia with article 3926a or
     section 118.131.    They ware   rendered inoperative   by a
     statute enacted before   former article  3926a became   law.
     The revisor's note discussing the repeal of articles 1029,
     1030, and 1018 by the 1985 %onsubstantive"      revisory act
     is found following article 104.002 of the Code of Criminal
     Procedure.   It explains how the former Code of Criminal
     Procedure   statutes were rendered    inapplicable   by the
     adoption   of article XVI, section 61,        of the Texas
     Constitution abolishing the "fee system"   for compensatin
     officers, and by the enactment of former article 3912e, ?
     V.T.C.S., forbidding payment by the state of fees to local
     officers (both of which occurred prior to the enactment in
     1981 of former article 3926a):

            Article 3912e [section 31 expressly    states
            that neither the state nor a county may pay
            a fee or commission to a district or county
            officer compensated    on a salary     basis.
            Article  XVI, section    61 of   the    Texas
            Constitution   requires . . . sheriffs    and
            constables to be paid on a salary basis.
            Since all officers . . . are or habited from
            receivina fees from the state. Ehe nrovision
            of article   1018 reouj&.na  that the fees
            paid bv the state are a harae aaai        th
            defendant are meaninalessc (Smphasi?a~ded.~

          We therefore advise that commissioners courts may not
     set fees for the execution   of criminal warrants by the
     sheriff or constable   in either misdemeanor    or felony



           2. Article 3912e was repealed by Acts 1987, 70th
     Legislature, chapter 149, section 49(l) and recodified as
     part of the Local Government Code, principally at chapter
     154. The prohibition     against paying fees to salaried
     officers is now codified   at section 154.002 of the Local
     Government Code.




                               p. 4302
Honorable Mike Driscoll - Page 8     (JM-880)




cases. To the extent that Attorney General Opinion JM-193
(1984) suggests otherwise, it should not be followed.

                       SUMMARY
            Commissioners courts may not set fees
       for the execution of criminal warrants   by
       the sheriff or constable    in either mis-
       demeanor or felony cases.     Such fees in
       misdemeanor. cases involving state criminal
       statutes must be uniform     statewide, and
       such fees in felony cases are no longer
       collected.

                                 Iv-2j~y&


                                   JIM     MATTOX
                                   Attorney General of Texas

MARYEELLER
First Assistant Attorney General

mu MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General




                         p. 4303
