Untitled Texas Attorney General Opinion ( 1942 )

THE ORNEY GENES
This Opinion
Modifies Opinion
# O-1981
- ~S%cey S. Wslker
County Attorney
Walker County
Huntsville, Texas
Dear Sir: Attention: Robert B. Smither
Opinion No. O-4680
Re: Under the facts submitted IS the
sheriff of Walker County entitled
to collect his fees for the ~ i
transportation of defendant,
under Article 567-b, Section 5,
Vernon's Annotated Penal Code,
from the State or if the defendant
should be required to remain in
the county jail until he has
satisfied such costs?
Your letter of June 20, 1942, requesting the opinion of this department
on the above stated question reads as follows:
"In Re:State vs. Willian B. Palmer,
CountyCo~t,,Walker County,
Texae
"In the above case the defendant has pleaded guilty:,to
the offense of passing a hot check in the amount of
$10.00 and his punishment assessed at one day in
jail and costs of Court. The defendant was located
at New Braunfels; Texas; and held there for the
sheriff of Walker County, Texas, who went after the
defendant and transported him to his county.
"The question is whether the sheriff of Walker County
Is entitled to collect his fees for the transportation
of the defendant under Article 567-b, Section 5 fran
the State or if the defendant should be required to
remain in the County Jail until he has satisfied such
costs?
"We are unable to find any cases where this question
has been construed by the Courts.
Eon. Dewey S. Walker, Att’n: Robert B. Smither, Page # 2 O-4680
“It eppears the only method by which the sheriff could
collect his fees from the State would be by the district
court approving an account for the same as provided in
Article 1030 of the Code of Criminal Procedure, however,
in view of Article 1019 of the Code of Criminal Procedure
it appears likely the district court would not be authorized
to approve the sheriff’s account and the defenr’ant would
be required to remain in the county jail until all costs
were satisfied.
“E x parte Shaffer, 92 S. W. 2d 250; Overstreet vs. State,
15 5. W. 2d 1039.”
In opinion No. O-1981, this department held, among other things, that:
” . * . Officers issuing and serving process in misdemeanor
cases arising under Article 567b of the Penal Code are
entitled to such fees ~8s they would be in any other mia-
demeanor case . . . s
”. * . *
where a defendant is convicted of a misdemeanor offense
under the above mentioned article and is unable to pay
his Pine and costs and satisfies the ssme working on public
works or remaining in jail as provided by Articles 785-797,
inclusive, of the Code of Criminal Procedure, the officers
or witnesses would be entitled to collect from the county
one-half fees as In other misdemeanor cases as provided
by Article 1055, of the Code of Criminal Procedure. Bearing
in mind that officers issuing and serving process are only
entitled to the same fees and mileage as in other misdemeanor
ca*es. qe enclose a copy of this opinion herewith.
With reference to opinion No. 1981, Supra, it will be noted that It is
stated in part; “the officers or witaeaaeswould be entitled to collect from
the county one-half fees”, etc. The word ‘witnesses” was ina.lvertently
inserted. Witnesses are not entitled to any fees under Art. 1055 Cow. C. P.
Therefore, opinion No. 1981, is modified accordingly.
Article 235, Vernon’s Annotated Code of Criminal Procedure, provides:
“One arrested for a misdemeanor ahall be taken before a
magistrate of the county where the arrest takes place who
shall take bail and transmit immediately the bond so taken
to the court having jurisdiction of the offense.”
Hon. Dewey S. Walker, Att'n: Robert B. Smither, Page # 3 O-4680
You do not state in your letter whether or not the provisions of Article
235, aupra, were complied with. However, for the purposes of this opinion
we assuae that the provis,ions of this statute were complied with, and
that the defendant did not enter into and execute a bail bond and the
defendant was committed to jail of the county where he was arrested under
Article 236, Vernon's Annotated Code of Criminal Procedure, and the
magistrate committing him notified the sheriff of Walker County in which
the offense was alleged to have been committed of the arrest and com-
mitment, and the sheriff receiving the notice went for the defendant
and brought him before the proper court as authorized by Article 237,
Vernon's Annotated Code of Criminal Procedure.
In view of the foregoing, you are respectfully advised that it is the
opinion of this department that the sheriff of Walker County is not
entitled to collect his fees for the transportation of the defendant
from the State and that the defendant should be required to remain in
the county jail until he has satisfied such costs at the rate of $3.00
per day. (Ex parte Ferguson, I.23 S. W. (2d) 408 and Ex parte Patterson,
132 5. W. (2d) 411.) And as the county officials of Walker County are
compensated on a fee basis the sheriff would be entitled to collect
from the county one-half his mileage and other fees as in other misdemeanor
cases as provided by Article 1055, Code of Criminal Procedure.
Trusting that the foregoing fully answers your inquiry, we are.
Yours very truly
A!ITORNEYGEWEBADOF
TEXAS
s/ Ardell Williams
Assistant
AW:CO/Ldw
APPROVED
JUG 8, 1sQ
s/ GWALDC. MANN
ATTORNEY
QXEBALOFTEXM
APPROVED
OPINION
COMMITTEE
BY B. W. B.
CHAIRMAN