                                                 Juwary    l2, 1939




woaw.?.so%tos
county .4ttonaey
‘>r~ge,     Texas

Dear Sir:                 ~pia&nl No. 3-22
                          lb:, Fees of County *xttoraeys.
                          Justicea af tlm Peace, Shoriffa,
                          in misdom*Mor     Csse8.

         Tour mpst      for sm opi+a  OL tb abow. dated Ceeern-
kr 20, 1938. addressed to Attorney Genersl rjilliam lv.cCraa has
beea nf8rr.d   to this Caputrnbnt for attention and reply. ha
qnoto your Iettsr as follows:

                  “Pla8ae giw me your opinion in the fol-
            lowtag qwatioas:

                  ‘(1) In miadonu~or   cases w&r+    a Jurtice
            of thm Peace issws l warrant of armat   and aub-
          poena for witaomes in a err      aad phcca them
          in the haads of th sheriff or coastable for ser-
          vice and before the sheriff or constable meets
          ths accused or the witnrsaes, is ths officer tn-
          titled to charge for fees of arrest aad summoning
          the witnears    or not?
                  ‘(2) lf a peison convicted of l mfsdemeaaor
          aad the Juatico of the Aace issws a eommitiat         to
          the sheriff and the sheriff does not place the con-
          victed parson in jaU, but lata him go on a promise
          to day the fiue and coats in the futura and doer +y
          it later, is the sheriff entitled to eoilect from the
          convicted person the fee for commitment and re-
          leaw7

                ‘(3)  .Yhea ths sheriff mleraea a coavietod
          person as nuntioncd in the abow paragraph (2)
          and later collectes from the convicted person
          enough mosey to eowr Wfizm, trial fee and attorney
 Hon. :i;. P. Sexton, January 12, !939, page              2.

           fee aud perhaps part of the eheriff’r fee,
           sad then refuses to turn in tbe sum of fine,
           trial fee and attorney’s fee until be caa
           collect the whole of alI fine md costs, .hes
           he the IegsI right.to   withhold  such fine. trial
           fee snd sttorwy fee until M cae collect his
           fee. Is l sh e r iffentttled to a fee for cwnmit-
           ment sd nlerse        whether orn ot the convicted
           person pays fhu?

                  ‘I will appreciate your opiaioa on the
           abow   qwstioas as the sheriff and justices of
           the Peace of this county do not seem to agree
           regarding then uutters,~
                                                    .
          h answer te yeur first inquiry.the rtetutes prescribe
                                       coaditioaed upon the
certain fees to be prod county officers,
performMu     of certa~ acts.

                    “Foe as a term       lxpnssiw          of reaauwra-
           tioa   for public officials    meum          the remuneratian
           or compensation or wages allowed by law ia
           return  for their servlees.’ (Vcltmsa v. State,
           217 3.3. 378.)

           To entitle aa efficer to a fee in any case, he must per-
form    some act to e8rn the same:

                  -To entitle sa officer to receiw fees or
           canmissioas*    * l he must have performed   the
          services   for which compensation hro been specified..
          (34 Tcx. Jur.. Sec. 113, p. 522).

          The qwstioa nsoives  itself down to one point. la there
such a performance of service rendered by the sheriff   as to en-
title him to a fee I

          Arrest on a criminai    charge  hw been defined as “the
appnhendixkg    or detaining of tha person in order to be forthcoming
to snstwr    an sIleged or suspected crime.g   (15 &iv. JL?).

         Article 239 of the 1925 Texas Cede of Crimina.i                   i?rocedure
reeds as follows:

          “A person is said to be arrested               when be has
          actually    been placed under      restmint          or t&en
          into custody by the officer        or person         executing
          ths warrant of errest.~

         Texas Jurisprudence, Volume 34, paragraph Li3. sad cases
there cited, states that: ‘To entitle an officer to receiw feer or
commissions, the receipt thereof must haw bsen provided for and
the smount fixed by law; snd he must haw performed the services
for which compensation has bean specified..
HO&       :V. .?. Sexton, Jaauary l2, 1939. page 3

           It i8 trw that   our statutes provide that in certain
cases mmofficiol may be entitled to a fee, own though not
perfonniag     any act or service in maid eeae. This is true
of l h u nty Atto r a sy , who is entitled to a fee on a plea of
guilty in the Justice Court without personally king present,
but our statutes proscribing      fees for public officials are
strictly construed in fever of tbe state, ceenty or muaici~ality,
md wless        a fee is mpecificaily   provided   for neae eaa be al-
lewd. and the officer cannot be heard to complain if the
Legislature bad been more liberai toward other officials than
toward him in the matter of compensation for his office, mm
he is presumed to know this at the time he sought the office.

          1 would like to call your attention further to .~.rticle
1Oll of the 1925 Code of Crirniaei lrocedure,    which reads as
fouow‘r

                    -No itemo f costs shall b trrPd for a
             purported service which was not petionned
             or for s service for which no feo is expressly
             provided   by~law.m

          You are advised that it is the oaiaioa af this Gapart-
meat that fear allowd to officers by statutes arc allowed as
cmnpenaation for menicer lctumliy rendered and unlearn the
 services ai sctuall7 rendered. the officer is entitled to no
fee. Therefore, where an sccueed voluntarily appears and
entershis plea without having h&d the warrant of arrest served
on him by the sheriff, the sheriff would not be entitled to a fee
for serving the ~wsrrsnt. The same would be tnm as to serving
a subpoena; the sheriff would not be entitled to a fee unless be
had actuaily merwd the ssme.

          In reference to your second inquiry. w are of the opia-
ion that our mamwr to the firsr question amswrs the second, for
the reason that unlearn the sheriff actually eammitted and released
the prisoaer, he would not be entitled to AZIYfee.

            In answer to your third inquiry. we wish to refer you to
Article    317 of the ?enal Code of Texam of 1325, which reeds as fol-
lowa:

                  -Aay offiar.  jailer. or guard having the
            legal custody of a person accused or convicted
            of a misdemeanor who wilfully permits such
            person to escape or to be rescued slull bs fined
            BOt exceeding one thousand dollars.’
Wan. Yi. P. Sexton. January 12.1939, page 4

           The Court has maid In the came of Lucky         vs. Ztate,
14 Tee. 400:

                  *A sheriff who permits    s person convicted
           of misdememor     to go at large, when such primo=r
           has ken committed to jail until the fixta aad costs
           are paid is guFlty of permitting such prisolur to
           eaeape.. .’

           Artiels   322 of tha Fenal   Code also raadm:

                  ‘Amy officer, jailer, or guard who hamthe
           legsl custody of a person accumed or convicted
           of a. misdemesaer   who negligently perrr:itm much
           person to eseaps or to be rcscwd      shti be fiaed
           net orceediang film hundred dollars.’

           We also wnt  to call your stteation to .+rticla     324 of
the sauu    Code which provides:

                   -Any s&eriff or other officer who wilfully
           refuses or fails Cram wglect to axeate 3ay
           lawful process in him haads requiring t&e arrest
           of I) p er so n
                         lceumed of a misdemeanor whereby
           tbe lceuud escapes, or who wilfuily refuses to
           receiw into s jail under him charge or to re-
           ceiw in him custody mny person lawfully com-
           mitted to his cumtody on such accusation, shall
           be fined not exceeding fin hundred doLlarm."

         A peace officer has ao authority to allow a prisoner
time within which to pay a fiae amsesmed against him by the Court.
Article 787 of tbe 1925 Code of Criminal Sroeedura of Texas pro-
vfde a:

                  “.Ahen a judgrr-nt &as ken rendered against
           a defendant for a pecuniary fk#. if he im premeat,
           he shall be irnprimoned ia jail uatfl discharged as
           provided by law. A certified copy of such judgment
           shall be sufficient to authori=  muchimprisoaxnent.’

           Article   788 of the muna Code of Crivniwi      Proudun,
reds:

                   “lv hen a peeuatary fiae ham been adjudged
           againat a defendant aot present. 0 capiam mball
           forthwith be issued for him arrest.    The sheriff
           shall execute tbe same by placieg the defendant
           in jail.’
Hon. iv. P. .%mt&, Jamuy        12, 1939, paae 5

           article   789 of tha Code of Criminal   ?rocedure   reads
 *. folloaa:

                  Q%er e lwh c a p k aiaa~a, it s
                                                h a ll
                                                     a ta ts
           th 8r*ndition 84 amaunt o fth ejudgment a nd
           th a amountunp a id
                             th e r eo n.
                                       a ndeo ¶nmr Pth
                                                     d e
            sheriff to tab tha defendant and p&a him in
           j&I until the amountdue upateuch Judgment     and
           the furtlmr Costa of collecting the aame are
           paid, or until the defendant is otherwise legally
           diachargad:

          If an officer fatla to comply with the order of tha court
rsnteacin~ a prisoner to pay a fin8 or go to jail, and permitting
the priaonar to 90 at large. than the officer would be guiity of
permittinq the priaaner to laupa or refusing to receiw raid
priaornr aa set out ia tba Article8 of the Penal Code above.

          It has lonp hen held by tbia Cepartment that whara
only.   part of a fina and coata is eollactad, that tha money col-
lected should firat go to the paying of coats and the balance, if
any. to the amount of the fine, and where thera ia not enoqh
collected to pay all of the coats, that the money collected should
ba proratad between the dffcara having a fee according to the
amount of their fee and one officer baa no priority owr another:

          Article    949 of the 1925 Coda of Criminal   Procedure   pro-
vide a:

                 ‘ldoney collected by en officer upon reeqnizances,
          bail bonda and other oblig&iona raeovered upon ia
          tha name of tha State under any provision 3f this
          Code, and all fines, forfeitures, judgment8  and
          jury feea collected under any provision jf this
          Code, shall forthwith ba paid ova? by tha officers
          collecting the mama to the County Treasurer of the
          proper county, after first deducting therefrom the
          leg& fees and commiaaiona for collecting the same.”

          In view of the above atatiates, it is our qdnion that the
money collected by the sheriff shall forth with be paid owr to
t.ka proper partiaa. Namely, paymant of tha coat to the proper
officiala antitlad thareto. and tha belance to the County Trerrunr,
end in the event there ia not enough to pay all tha fine and coats,
then the money shall be prorated aa set out above.

         In answer to the last sentenca in your third paragraph, yoo
are adviaed that this Ceparflrent has held a conferenca opinion,
dated January 11, 1939, written by Aaaiatant Atiorrjr General den-
jamin aoodall, addreaaed to Hcaorabla C. Burtt ?otWr. County At-
torney of San Patricia County, Sinton, Texaa, that Chapter 483 of
the General and Special Laws of the Forty-Fifth Lagialature of
Texra, same being House Sill NO. 727 3f the Regular 3asaion. aad
 Hon. V*. P. Sexton, janwry      It, 1949, page 4

carried forward as .rrticla 1055 ia Vernon’s -otatad
Coda of Crimiaml Procedure, pocket supptment, is
void and uaconatituthnal.   as king  in eontrawntion af
s4ction 33 of .xrucia III of tha ConatitutioB of tha Shta
of Texas; md that Artiela 1055. Co& ol Criminal ~Procedure,
1925, not having heen repealed,a nd the Mandatory      act being
usconatitutional and entirely void, is still tha law of Texas,
uwi sll fee officara an aubjeet to ite provision.

         Article 1355, Code of Criminal Procedure. 1925,
tha Act sought to ba emended, and the Act which this Le-
partmant holds to be the law, now readr:

                 ‘Articla 1055. Half Coat -:fficara. Tha
         county shall ha liahla to each officer and wit-
         ness hwin# coata in a misdemeanor wee for
         only SW-h8lf thereef whem tha defendant has
         ntiafbd     tba &a and coats adjudged against
         hfminfullby~borin~wor~ou~,on~
         county farm. on the public roads. or upon my
         public works of the county, and to pay such
         oaa-half of such legal coats as may have been
         so taxed, not including commiasiana.       The
         County Judge rball iaaw his vrrrrant upon the
         County Treraurer      in favor of the proper party.
         a nd th e lw     shall ti paid out of the road and
         bridge fund. or other fuada not otherwise ap-
         propriatrd.”

            In view of tin above provision of tha 181~.you are advised
that  if the sheriff actually committed and released the primmer,
and the priaowr      aatiafied the fine end costs adjudged against him
in full hy labor iat he workhouse. on the county farm, on the pub-
lic roads, or upon any public works of the county, tha sheriff
would    ba entitled to --half    of the regular fees to be paid by the
cou.nqq otberrtae, the sheriff would not be entitled to my fees
until and unlaaa the &fen&at       paid the fina aad coats adjudged
against him. In wither instance would ha W entitlad to any fee
unlearn he actually committed aad releraed the prisoner,       f~or the
reasons set out abow.

         Trusting that   this sufficiently amwere       your inquiry, 1 am

                                     Yours wry      truly.

                           ATTORNZY          GENEiGL       CF TZ:,XAS

                            BY       a/ h.   C. ikartin
                                                          Assistant
ti’/..:FG:vmb
APTR,3YED
ATT3RNEY CZNERAL          ffF TEXi:3
