              THEATTORNEY          GENERAL
                          OF ?I?ExAs



Xion.it.Plner Powell
County Attorney
Brown county
Erownwood, Texas
Dear Sir:                   Opinion No. o-2214
                            Re:  Is a constable ln a~~countywhere the
                                 sheriff 1s on a salary basis, entitled
                                 to.hls or+glnal arrest fees in a felony
                                 case where the defendant is properly
                                 3nalctea and convicted, but sentenced
                                 ln district court to the penitentiary
                                 or to the county jail, and in which
                                 no money Is paid into the court by the
                                 defendant?.
            Your letter of Air&l 11, 190, requesting an opinion of
this department on the above stated question, has been received.
             Your letter reads as follows:
             "What prodedure does a Constable report to
      collect.hls'arrestfees, where the sheriff In the
      same county Is paid on a salary basis?
             "I refer to a fel&y case, where the defend-
      ant Is indicted by the &ran&jury, and the case Is
      disposed of by~a conviction ln the penn or properly
      sentenced to the county~jall on a .felonycharge.
              "I refer to Art. 1065, C.C.P.
             "It Is our understanding that some constables
      over the state have been collecting Original arrest
      fees ln felony cases, where the defeni¶sntIs later
      Indicted by the grand jury, ani3 the caee disposed of.
      So far ln this county'the constable has been collect-
      i;& no fees In such cases, except'wherereduced to
      misdemeanors on the trial of the case, or so reduced
      by the grad jury  upon Indictment.
              "Therefore, I would like an opinion on the
       followln&
              "11s a Constable, ln a county where the sheriff
       ii on a.salary basis, entitled to hls orl%lnal arrest
       fees, In a felony case, where the defendant Is properly
       lnalctea and convicted, but .&sentencedln District Court
       to the penn or to the county~jall, snclln.whlch no
       ---a-.4" ..-,A4n+r.thn nnnmt hu~fhe A~fendmt?‘”
Hon. J. Plner Powell, page 2                           O-2214


             According to the last Federal Census the population of
Brown County Is 26,382 Inhabitants. The county offlclals of sala
county are compensated on sn annual salary basis, and the precinct
offlclals are compensated on a fee bafils.
             Article 1065 Code of kmlnal Procedure provides
certain fees for the sheriff, or bbher peace offlcers'performlngthe
same services In a misdemeanor casa, to be taxed against defendant on
conviction.
             Article 1030, Code of Crlmlnal Procedure, specifically
provides certain fees for the sherlff'orconstable for definite services
performed by them In eelony cases ln counties having a population of
less than 40,000 Inhabitants,as shown by the preceding Federal Census.
             Section 17 of Article 3912e, Vernon's Annotated Civil
Statutes, reads, ln part, as follows:
             "Sec. 17. (a) The term 'Precinct Officers'
     as used In this Act means justices of the peace and
     constables,
             "***it**

             In counties wherein the county officers named
     In this Act are 'compensatedon the b&s of an annual
     salary, thenState of Texas shall not be charged with
     ma shall not pay any fee or commission to any pre-
     cinct officer for any services by hlm performed, but
     said officer shall be paid by the County out of the
     Officers' Salary Fund such fees and commlsslons as
     would otherwise be paid him by the State for such serv-
     ices."
             Article 1019 of the Co& of Criminal Procedure reads as
follows:
             ~"Ifthe defendant Is lnalctea for a felony and
     upon conviction his punishment Is by fine or conflne-
     ment In the county jail, or.by ~bothsuch fine and con-
     flnement In the county jail or convicted of a mlsae-
     meanor, no costs shall be pala by the State to any
     officer. All costs In such oases shall be taxed,
     assessed ana collected :~as ln mlsdbmeanor cases."
             In view of the forego& statute& you are respectfully
advised that It Is the opinion of this department that ln counties
where the county officials are compensatedon a salary basis and the
precinct officers a&compensated on a fee basis; the constable Is
entitled to the.statuto3.yfees for all services actually performed by
him ln felony cases,.sala fees to be paid by the o3unty out of the
Officers' Salary Fund when sala fees would otherwise be paid hlm by the
State fob such services.    ,~
. &m.   J.’Plner Powell, Page   3                               O-2214


              You are Further advised that where a defendant Is lnalctea
 for a felony and upon convlctlon hi8 punishment Is by fine or conflne-
 ment In the county jail, or by both, such fine and conflriementIn the
 county jail or convicted 0r a misdemeanor, no fees can be paId a con-
 stable ,forservices rendered In such cases by thecounty out of the
 Orflcers’ Salary Fund or any other fund, such fees shall be taxed, assesse
 ana collected as ln misdemeanor cases.
               In felony ca6es where a constable is entitled tofees to be
  paid out of the Officers’ Salary Fund he shall.be paid on warrants approve
  by the county auditor In the counties having a county auditor; otherwise
  all claims against the OfficersI Salary Fund shall first have been audited
  and approved by the commlssloners1 court of said county and the money
  shall be disbursed on such approved claims bywrrada drawn by the county
  treasury on said ma.
               !Prustlngthat the foregblng fully answers your lnqdry, we
  remain
                                    Yours very truly
                                    ATTORNEX OENERAL OF TEXAS

                                    By   s/ Ardell Wllll8ms
                                            Ardell Williams
                                            Assistant
  AW:obiwc

  APPROVED APRIL 23, 1940
  s/ Qerald C. ~Mann
  ATTORNEY QENERAL OF TEXAS

  Approved Opinion Committee by s/BwB Chairman
                          _.’
