    ,
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        Honorable Tom L. Hartley         Opinion Ro. O-3791
        Criminal District Attorney       Re: 18 the chief of police en-
        Edlnburg.
               -_ Texas                       titled to act in the men-
                                              tioned capacity and trana-
                                              port prisoner5 to the coun=
                                              ty jail out of his juris-
        Attention: Hr. H.H.R~ankin,Jr.        diction in an automobile
                                              furniahed by the city and
                                              receive a fee therefor, or
                                              should prisoners be turned
                                              over to the constable or
                                              sheriff? And related ques-
        Dear Sir:                             tlons.
                  This will acknowledge receipt of your requeat for the
        opinicn of this department on the hereinabove captioned matter.
        We quote from your original letter and your subsequent letter,
        giving us additional facts, a8 follows:
                  "The Chief of Police of the City of MeAllen,
             i.home rule city, Hidalgo County, Texasr,is paid
             a.certain definite salary per month for his ser-
             vices as such to said City. He further from time
             to time files cases charging JuBtice Court mia-
             demeanors In the Justice of the Peace Courts in
             the McAllen Justice Court precinct. On such occa-
             aion he performs all the duties of a aheriff or
             constable such aa making the arrest, summoning a
             jury, waiting upon the Court, and in ease the fine
             5s not paid, the execution of the commitment by
            ,transporting the prisoner to the county jail. In
             the transportation of theae prisoners he uses an
             automobile furnished him by his employer, the City
             of McAllen, and it Is necessary for him to leave
             the City In which he has jurisdiction in order to
             get the prisoner to the County jail. As a matter
             of practice the people he arrests, who are in a
             loositionto,pay a fine, are tried and fined in
Hon. Tom L. Hartley, page 2.   (O-3791)


     the Corporation Court. Cases are only filed in
     Ju&ice of the Peace Courts when it appears In
     all probability that the Defendant will not be
     able t;opay the fine and have to be committed to
     jail *
          "1 . The specific offenses involved In these
     ciiBe6are disturbing the peace, affrays, assault
     and battery, drunk in a public place, and other
     s:Lmilaroffenses of which both the Justice of the
     Pt?aceCourts and the Conporation Court have con-
     current jurisdiction.
          "2 . The offense5 in queation axe all com-
     mitted within the corporate limits of the City
     of McAllen, Texae.
          “3 . All of the complaints filed in the Jus-
     t:LceCourts are for violations of the State laws.
     IJocomplaints are filed in the Justice courts for
     v:lolationof city ordinances, however, in some
     cases there may also be a valid city ordinance
     covering the same offense as is covered by the
     &ate laws.
          “4. The great majority of the arrests in
     the cases in question are made without a warrant.
          “5. Those arrests made with warrants, in
     cases handled by,the.Chief of Police in the Jus-
     tice Courts, are all made on warrants Issued out
     of the justice court where the case is filed. Epo
     warrrants of arrest are issued out of the Corpora-
     tion Court in cases filed or to be filed in the
     JiraticeCourts.
          'The Information that this office has receiv-
     ed 15 that a~ a matter of actual practice the major-
     ity of the arrests are made without warrants and
     g:?owout of offenses committed within the sight of
     a-.kzh
          police officer as he cruisea about the City
     ore&Allen in the discharge of his duties as Chief
     5-rPolice of aald City,
          "After the offender Is arrested he Is then
     transported to the city jail to await trial. It
Honorable Tom L. Hartley, page 3   (C-3791)


     is then, or at some time before the case come8 to
     trial, that the Chief of Police decides whether
     to file that particular case in the Corporation
     Court or in one of the Justice Courts in the City
     of McAllen.n
          "This office is familiar with your opinion
     No. 2112 to the Hon. B. M. Whiteacre, County~Audi-
     tar, of Grayson Caunty, Texas, dated April 1,19&O,
     and the authorities therein mentioned.
          "In view of the above statement and the above
     mentioned opinion rendered by yo'uroffice we wonld,
     appreciate having the following questions answered.
          "1. Is such Chief of Police entitled to act
     in such capacity and transport prisoners to the
     County jail, out of his jurisdiction in an automo-
     bile furnished by the City and receive a fee there-
     for, or s,ho,uld
                    prisoner8 be turned over to Constable
     or Sheriff?
          "2 a Is such Chief of Police a proper officer
     to summon a jury under Article 892 of Code of Crim-
     inal Procedure of Texas to try the cases he has
     filed, and if so, receive a fee for such service?
          “3 . Doea the fact that such officer is paid
     a salary by the City affect his right to receive
     fees?
          “4 0 Is It proper for a,uchofficer to pay the
     fees he receives into the treasury of the City that
     employs him?

          “5. Would such Chief of Police be req,ulred,
     if entitled to these fees, to make an annual report
     of the same as a duly elected Constable?Y
          The statutes provide~for the election by the people
of a City Marshal (Article 977, V.A.C.S.) who shall be ex of-
ficio chief of police. Articles 999 and 1147, V.A.C.S., pre-
scribe his powers and duties.
          City Marshals are peace officers. Article 36, V.A.
C.C.P., reads as follows:
         "The following are Ipeace offlcer~:~ the
    sheriff and his deputies, constable, the marshal
    or policemen of an Incorporated town or city, the
    officers, non-commissioned officers and privates
    of the State ranger force, and any private perao;
    specially appointed to execute criminal process.
         Article 1067, V.A.C,C.P., provides that:
         "Constables, marshals or other peace offi-
    cers who execute process and perform services for
    justices in criminal actions, shall receive the
    same fees allowed to sheriffs for the same services."
         Article 40, V.A.C.C.P., provldea as followsr
         "If any sheriff or other officer shall wil-
    fully refuse or fall from neglect to execute any
    summons, subpoena or attachment for a witness, or
    any other legal process which it is made his duty
    by law to execute, he shall be liable to a fine
    for contempt not less than ten nor more than two
    hundred dollars, at the discretion of the court.
    The payment of such fine ahall be enforced In the
    same manner aa fines for contempt in civil casee."
         Article 26, V.A.P.C., reads as follows:
          "The term 'criminal procees' iisintended to
     signify any capiaa, warrant, citation, attachment,
     or any other written order lsa,uedin a criminal
     proceeding, whether the aame,be to arrest, czmmit,
     collect money, or for whatever purpose used.
          In answer to your first question, it is the opinion
of this department, under the facts stated, that the chief of
police is not entltled as a matter of right to act in any of
the capacities mentioned, except to make the arrest, under
the facts stated. He la however, authorized to aot in the
other capacities named (summon a jury, wait upon the court,
and in case the fine is not paid, to execute the commitment)
when ordered to do so by the~justice of the peace In each
instance. The justice of the 'peace cauld order the sheriff
or constable to-perform any of-the services neceeaary subse-
quent to the arrest by the chief of police. Where the chief
of police la ordered to perform such servicea by the justioe
Honorable Tom L. Hartley, page 5   (O-3791)


of the peace, he mus,tdo so and,is entitled to receive the
statutory feea provided for s,uch,eervices.
          Whether he can use the city's automobile in trans-
porting such prisoner to the county jail, out of his juris-
dictior.,and whether he must turn such fees over to the
city, are questions which depend on the charter, ordinancea,
or his contract with the city, specifying the terma of his com-
pensation. We therefore express no opinion on these latter
questicns.
          Article 892, V, A, C,C.P., reads as follows:
          "If the accused does not waive a trial by jury,
      the justice shall issue a writ commanding the proper
      officer to summon forthwith a jury of alx men quali-
      fied to serve a,sjurors. Said j,urorawhen so summon-
      ed shall remain in attendance aa jurors in all eaees
      that may come up for hearing until discharged by the
      court. Any man so s,ummonedwho fails to attend may
      be fined not exceeding twenty dollars for contempt,"
          In answer to your second question, It Is the opinion
of this department that, under ,thefacts stated, such chief of
police ie a proper officer under Article 892 to s'ummona jury
to try the cases he has filed and is entitled to receive the
statutory fee for such service,
          Home Rule cities are expressly given the authority
to fix the compensation of their officers. Article 1175,
V.A.C,S. The city could, therefore, pay the chief of police
a salary only, or, a salary and, in addition, permit him to
retain part or all of the statutory fees, or he could be paid
strictly on a fee basis,
          While the fact that such ofricer is paid a salary by
the city, as stated In yo'urquestion, wo,uldnot affect his
right to receive the statutory feea provided for the services
rendered by him, it might affect his right to retain such fees
for himself.
          In answer to your third question, It Is t,herefore
the opinion of this department, under the facts stated, that
such officer is not prohibited from receiving the statutory
feea for the services rendered by him. Whether such officer
may keep such fees for his own use aa a part of his compenaa-
tion, however, is a question which depends on the terms of the
ordinance or agreement fixing his compensation. As we have not
Honorable Tom L, Hartley, page 6.   (O-3791)


been advised as to the exact nature of the terms of his
compensation, we are unable to paas upon that apecifio point.
          However, in your third question you atate that such
officer Is paid a salary by the city. If the ordinance, fix-
ing his compensation, provides merely that he shall be paid
a salary and doea not expressly authorize him to retain, In
addition thereto, any fees as part of his compensation, then,
we are of the opinion that he would not be entitled to retain
such fees as part of his compensation, but should pay them
into the City Treasury.
          Statutes prescribing fees for public officers are
strictly construed and hence a right to feea may not rest In
impllcatlon. Where this right is left to construction, the
langua.geof the law must be construed in favor of the govern-
ment. Where a statute Is capable of tw~oconstructiona, one
of whi.chwould give an officer compensatlon,for his services
in addition to hia salary and the other not, the latter con-
struct'lonshould be adopted, 34 Tex. JuP., pages 508, 509.
          In answer to your fourth question,.it is therefore
the opinion of this department, under the facts atated, that
unlem the city ordinance or agreement fixing the compensation
of a,uahcity marshal expressly and clearly authorizes him to
retain such fees aa part of his compensation, it would not
only be proper for him to pay his feea Into the city treasury
but he would be subject to criminal prosecution if he applied
such fees to his own use. See Article 95, V.A.P.C.
          Article 3896, V.A.C.S., requiring certain officials
to kef?paccounts In the manner therein set out, and Article :'- ,i_
3897, requiring certain official6 to make an annual sworn
staterrent,does not apply to a city marahal or chief of police.
Such officer ie, however, required to keep a fee book in ao-
cordance with Articles 1009-lOlOA, V.A.C.C.P.
          In answer to your fifth question, you are,therefore,
advised that, under the facta stated, it is the opinion of
this department that such chief of police is not subject to
the requirements of Articles 3896 and 3897, V.A.C,S,, but that
he must comply with the requirements of Articles 1009-lOlOA,
V.A.C.C.P., regarding fee books.
Bonora~bleTom L. Hartley, page 7   (o-3791)


          Trusting that the foregoing fully anewera your
inquiry, w,eare
                               Very truly yourt3.
                            ATTORHEY GEHEZtALOF TEXAS
                               By /a/ Edgar Pfell
                                            EcigarPfell
APPROVED OCT. 16, 1941                        Aaaiatant

/a/   Grover Sellers
FIRST ASSISTANT
ATTQRHEY GENERAL




                                               APPROVED
                                                Opinion
                                               Cammittee
                                              By B.U.B.
                                                Chairman
