Honorable John R. Foster            Opinion NO. C-605
County Attorney
Val Verde County                    Re: Whether the fees made
Del Rio, Texas, 78840                   taxable to the Defen-
                                        dant under Article
                                        53,01, Vernon's Code
                                        of Criminal Procedure,
                                        Acts of the 59th Le-
                                        gislature, 1965, may
                                        be taxed against a
                                        defendant irregardless
                                        of whether the duties
                                        relating thereto are
Dear Mr.    Foster:                     actually performed.
       This is In response to your request for an opinion
relating to the captioned matter.
        The question which you have raised for our conside-
ration may be stated as follows:
                Whether the fees made taxable to the
           Defendant under Article 53.01, Vernon's
           Code of Criminal Procedure, Acts of the 59th
           Legislature, 1965, may be taxed against a
           defendant irregardlessof whether the duties
           relating thereto are actually performed,
           Your opinion request reads in part:
                n     (W)hen the Department of Public
           Safety"&'fcera file a complaint, (In the
           justice court for highway traffic vlolatlons)
           no warrant or summons is Issued until after a
           defendant might fail to appear on or before
           the time stated on the ticket he is given.
           Most of the people respond to the date on
           their ticket and pay their fine without having
           any warrant served on them. The Department
           officers have told the Justices of the Peace
           that they are, therefore, not supposed to
           collect Sheriffs' or peace officers' fees
           for making an arrest or for a commitment or
           release.
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Hon. John R. Foster, page 2 (C-605),
                              1

            11
                 .(I)t appears to me that it would be
       the beit'practice for the Justices of the Peace
       to deviate from their practice here and to al-
       ways issue a warrant (or summons) upon accepting
       a complaint,which warrant Could,be served on
       the defendant when he appeared at the time ap-
       pointed on his ticket, or turned over to the
       Sheriff if no appearance Is made. The Justice
       should then collect from the defendant,not
       only the fine Imposed, but the Sheriff's or
       officer's fee for making the arrest under the
       warrant and for the commitmentand release of
       the defendant."
       Article 53.01, Vernon's Code of Criminal Procedure,
provides:
            'The following fees shall be allowed the
       sheriff, or other peace officer performing
       the same services in misdemeanor cases, to be
       taxed against the defendant on conviction:
            "1. For executing .eachwarrant of arrest
       or caplas, or making arrest without warrant,
       $3.00.
            "2. For summoning each witness, $1.00.
            “3. For serving any writ not otherwise
       provided for, $2.00.
            "4. For taking and approving each bond,
       and returning the same to the courthouse,when
       necessary, $2.00.
            “5. For each commitment or release, $2.00.
            “6. Jury fee, in each case where a jury is
       actually summoned, $2.00.
            “7. For attending a priaoner on habeas
       corpus, when such prisoner, upon a hearing,
       has been remanded to custod or held to bail,
       for each day's attendance,$4.00.
            "8. For conveying a witness attached by
       him to any court out of his county, $5.00.
       for each day or fractional part thereof, and
       his actual necessary expenses by the nearest
                     -2936-
Hon. John R. Foster, Page 3 (C-605).


       practicable public conveyance,the amount
       to be stated by said officer, under oath, and
       approved by the judge of the court from which
       the attachment issued.
            "9. For conveying a prisoner after con-
       viction to the county jail, for each mile,
       going and coming, by the nearest practicable
       route by private conveyance, fifteen cents
       per mile, or by railway, fifteen cents per
       mile.
            "lo. For conveying a prisoner arrested
       on a warrant or capias issued from another
       county to the court or jail of the county from
       which the process was issued, for each mile
       traveled, going and coming, by the nearest
       practicable route, fifteen cents.
            "11. For each mile he may be compelled
       to travel in executing criminal process and
       summoning or attaching witness, fifteen
       cents. For traveling in the service of process
       not otherwise provided for, the sum of fif:$?n
       cents for each mile going and returning.
       two or more persons are mentioned in the same
       writ, or two or more writs in the same case, he
       shall charge only for the distance aczually
       and necessarily traveled in the same.
        It is the opinion of this office that no fee provided
for by the above 'Articlewas intended to be taxed or collected
until the duty correspondingthereto has been performed. It
is a well settled rule In this State that statutes prescribing
fees for public officials are to be strictly construed against
the officer collecting such fee. Curtin vt Harris County,
111 Tex. 568, 242 S.W. 444 (1922). Lim;sio$ County     Robblns,
120 Tex. 341, 38 S.W.2d 580 (1931); yaEla ; Na:arr;:C;zE,
40 s#.W.2d-868(Tex.Clv.App.1931);.M;C       .   ty
dale, 112 Tex. 20Q. 246 S.W. 654 (1s ._I inford v. Robinson,
ii?'Tex. 84, 244 'S.W.;607(1922); Atty. Gen. Op:hion C-282 (1964).
        47 Tex.Jur.2d 213, Public Officers, Set, 168, states,
in part, as follows:
             81   .To entitle an officer to receive
        fees 0; :ommissions,the receipt thereof must
        have been provided for and the amount fixed
        by law; and he must have performed the services
                     -2937-
Hon. John R,,Foster, page 4 (c-605).


            for which compensationhas been specified,"
            (timphasissupplied)
        Your question is answered in the negative. The fees
provided for in Article 53.01 are to be taxed only after
there has been a bona fide performance of each duty corres-
ponding to each fee taxed.
                           SUMMARY
            The fees provided for in Article 53.01 are to
            be taxed only after there has been a bona fide
            performance of each duty correspondingto each
            fee taxed.
                                Yours   very   truly,

                                WAGGONER CARR
                                Attorney General of Texas




LC:cm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Owen
Sam Kslly
Wade Anderson
Lonny Zwiener
APPRWED FOR THE ATTORNEY GENERAL
BY: T. B. Wright




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