.   ,




                           November 9, 1951

        Hon. D. E. McQIasson, Jr.             .~ V-J.340
                                     Opinion X0.
        County Attorney
        Randa 11 County              Re:   Applicability of $4.00
        Canyon, Texas                      sheriff’s fee”in the
                                           described ~$roceedings
        Dear Sir:                          in a justice court.
                  Your tie@mst for an ‘opinionrelates to
        a factual ‘situation’Ghereiii‘elevenboysp-j
                                                 WeM’charged
        in justi& court, upon complaint Of’.the‘m&iager of a
        State park, with ~disturbing~thenpeace‘in such park.
        The boys voluntarily appeared before the’justice ~of-
        the peace,’who examlhed them, took a plea.of guilty,
        and assessed a fine and court costs. A deputy sher-
        iff was requested by’the justice of the’peace to
        assist the court. Upon therefusal~of a ,Uunber of
        the boys to pay their fines, the ‘justice of’the peace
        committed them to the deputy sheriff, who’ took their
        names . They paid their fines; .with the-exception of’
        one boy, and as the deputy sheriff proceeded to leave
        the room with the boy in his’ custody, ~the justice of
        the peace requested of the deputy ‘sheriffto let the,
        boy 6~0,upon the~condition he’would pay the fine lat-
        er, which he di,d. The puestion presented’is3 Is a
        sheriff’s fee of $4.00 authorized as costs against
        the defendants?
                    Article 1072, V.C.C.P, is as follows:
                  “Sheriffs and constables servlng’pro-
             cess and attending any examining court’ih
             the examination of a misdemeanor case’shall
             be entitled to such fees as are allotiedby
             law for similar services in the trSa1 ~of
             such cases, not to exceed three dollars’in
             any one case, to be paid by.the defendant
             in case of final conviction.*
                  This statute ‘doesnot authoriF% the allow-
        ance of a $3 fee in all events-for the ‘sheriff’s at-
        tendance at an examining trial, but only authorizes
                                                         ,   .

Hon. D. E,.McGlasson, Jr., page 2   (V-1340)


such fees as are allowed for similar services in
the trial of the'case, not to exceed $3. However,
under the facts which you have stated, the sheriff
was not entitled to any fees under Article 1072.
          In Attorney General's Opinion O-3078 (1941),
it was stated:
          "1. There is no necessity for an
     examining trial in a misdemeanor case when
     the defendant pleads guilty to same and
     the court has jurisdiction of the offense.
     For example, if a defendant was charged
     in the justice court with the offense of
     public drunkenness and the justice had
     started an examining trial and if the de-
     fendant stated to the court that he de-
     sired to plead guilty the justice should
     abandon the examining trial and enter 2
     judgment against the defendant. Under
     such circumstances no fees should be allow-
     ed for an examining trial. The regular
     fees provided by law would be payable
     under such circumstances."

          As we view the facts, a plea of guilty
was entered by the defendants prior to any examin-
ing trial. Therefore, no fees should attach by
reason of any examining trial but should attach by
virtue of the trial proper.
          By virtue of Article 1X7, V.C.C.P., the
fees set out in Article 1055, V.C.C.P., are charge-
able in criminal cases in jUStiCe courts. Article
1065, V.C.C.P., is as follows:
          "The following fees shall be allowed
     the sheriff, or other peace officer per-
     forming the same services in misdemeanor
     cases, to be taxes 'against the defendant
     on conviction:
          II. . .

               For each commitment or release,
     one dZ.ar."
           To entitle an officer to receive fees, he
must have  performed the~services for which compensa-
tion has  been specified. Art. 1011, V.C.C.P.
Hon. D, E. McGlasson; Jr.,:page 3   (V-1340)


          Attorney'General~'sOpinion D-1189 (1939)
held that onlg~where the facts show that the ilefendani t
is in the actual and legal custody of a c.onstable!
                                        . -._- _--_- nt
                                                     __
the time he pags'his fine is the constable entitled
to a release fee.

          Attorney~General's Opinion 04788 (1940),
relating to arrest, commitment, and release fees,
states:
         "The Constable is entitled to $1.00
    for executing each valid commitment in mis-
    demeanor cases. The'commitment'issues only
    after conviction of a defendant. The 'corn-
    mitment' or ~authorlty for imprisonment,~
    which the Constable executes in misdemeanor
    cases where a pecuniary fineshas been ad-
    judged against ~a defendant, and where the
    defendant is present, is a certified copy
    of such judgment, as outlined by Article
    787, C.C.P., Pupra.' If in such case'the
    defendant be not present, the 'capias' au-
    thorized and described in Articles 788 and
    789, C.C.P.; supra, is the 'cormnitmenttwhich
    the Constable executes.~~Where the judgment
    is imprisonment in jail, Articles 795 and
    796, C.C.P., supra, apply, and the "commft-
    ment' in such cases would be either a~certi-
    fied copy'of the judgment or a 'capias'; de-
    pendent upon the facts involved therein.
    The Constable would execute the 'commitment'
    by placing the defendant in jailas directed
    in the order; when this'was done by virtue
    of a valid commitment the Constable would
    have earned'his,fee and be erititled'thereto
    if, as and when, same was collected.
          ". . .

         "The Constable is not entitled to a re-
    lease fee unless he has the defendant in
    his actual and legal custody-at the time
    the defendant pays his fine and costs or-
    satisfies same by laying itsout 'injail and
    the Constable then and there releases the
    defendant from the force.and effect of a
    judgment restraining him. The term"release'
    cohtemplates a full, final and completesre-
    lease and discharge from the judgment re-
    straining the defendant.n
Hon. D. E. McGlasson, Jr., page 4   (V-1340)


          It is further stated in Attorney General's
Opinion V-322 (1947) that a sheriff is not entitled
to a fee for commitment of a defendantsunless such de-
fendant is confined to the jail; and he is not entitled
to a commitment fee for giving the defendant time in
which to pay the judgment. But he is entitled'to re-
ceive $1 for final release of such defendant from his
custody upon the payment of the judgment in full if the
sheriff had custody of the defendant.
          Article 1055, V.C.C.P., has been construed
as authorizing a~$1 fee for each commitmentand a $1
fee for each release. Att'y Gen. Op. V-322. In EL
~~~t~o~~i~~~s~o~~h~~~.~~ ;!?;?iIf;;.Crim. 1$&O), Arti-

          "Aswe understand the statute the 're-
     lease' for which the sheriff 'or constable
     may have the item'of one dollar charged
     against an accused is the 'release' from
     the judgment directing that he~remafn in
     the officer's custody until the fine and
     c-xts are paid.
         "If relator had been placed in custody
    of the constable until the fine and costs
    were paid, and the constable had agreed that
    relator might go F? large and pay same by in-
    stallments, he could not defeat the charge of
    one dollar for 'relet:e' because the constable
    had favore:lhim with the courtesy mentioned.
    (We are no.tdiscussing or considering the
    right of the officer to make such an agree-
    ment.)
          "The issue as to whether relator was
     properly chargeable with the one dollar for
     'release' turns upon the question of whether
     relator was ever in the constable's custody
     under the judgment. . . .'
          We adhere to the rule stated in Opinion
V-322 that where a pecuniary judgment for a fine and
costs is rendered against a defendant who is present
in court the sheriff is entitled to receive $1 under
the provisions of Article 1055, V.C.C.P., for final
release of the defendant from his custody when such
judgment is paid in full, whether such judgment be
paid at the time of itsentry or at a later date.
Hon. D. 8. McGlasson, Jr., page 5   (v-1340)
