Untitled Texas Attorney General Opinion ( 1939 )

THB ATTORNEY GENERAL
OF TEXAS
A~JSTXN 11. -
GERALDC. I&ANN
ATroRNEY GENJZRAI.
May 11, 1939
Hon. Ned McDaniel
County Attorney
Wichita County
Wichita Falls, Texas
Dear Sir: Opinion No. O-1078
Ae: What fee is a constable
entitled when he
accompanies the highway
patrol in making an arrest?
Your request for an opinion on the above stated question has been
received by this Department.
Your letter reads in part as follows:
“In many instances in this county the constable accompanies the
Hiahwav Patrolmen. or vice versa. on general patrol dutv, and
sor;letimes for the-specific purpose of-arresting specific-persons,
whereupon all officers participate in the arrest to various
extents.. Is the Constable entitled to a full or: partial
arresting fee in such cases?”
Article 1065, Code of Criminal Procedure; reads in part as
. follows:
“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 each warrant of arrest or capias, or making
arrest without warrant, two dollars.”
Each fee allowed under this statute is for a specific service
performed. If the highway patrol makes the arrest and the
constable does not participate in the arrest in any manner, he
is not entitled to a fee in the case. The constable is only
entitled to fees for services he performed as set out in
Article 1065, supra.
On September 2, 1936, this Department rendered an opinion
addressed to Mr. Allen C. Wilson, County Attorney, Boerne, Texas,
written by Hon. Joe .I. Alsup, Assistant Attorney General, upon
the same question as presented in your inquiry and held that the
Hon. Ned McDaniel, May 11, 1939 Page 2, 0-1078
Justice of the Peace is unauthorized to assess. as part of the
costs $2.00 for sheriff’s fees, where the sheriff performed
no services in such cases.
In an opinion wri tten by Hon. Joe Sharp, Assistant Attorney General,
addressed to Hon. L. 0. Osborne, County Attorney, Canton, Texas,
on June 14, 1937, this Department again passed on the question we
now have under consideration and held that a sheriff or constable
is not entitled to any fees for any service or for making any
arrest unless he actually made the arrest himself or participated
therein.
Under the general rule as discussed in Texas Jurisprudence, Vol.
34, page 5’15 where two officers with concurrent duties both per-
form a service for which a fee is due it should be prorated
between them in propcrtion to the work done by each. Of course,
this rule would not apply in this instance as the highway patrol
could, in no event, participate in the division since they are
on a salary. There is no statutory provision authorizing the
highway patrol to collect the arresting fee provided for in
Article 1065, supra, under any circumstances.
You state in your letter that the constable does in fact make the
arrest when he accompanies the highway patrolmen on general
patrol duty.
You are respectfully advised that it is the opinion of this
Department that when the constable accompanies the highway patrol-
men and actually makes the arrest himself or participates therein
such constable would be entitled to the fees as provided by
Article 1065, Code of Criminal Procedure. You are further
advised that if the Constable merely accompanies the highway
+ patrolman when as arrest is made and does not actually make the
arrest himself or participate therein, he would be entitled to
no fee.
Trusting that the foregoing answers your inquiry, we remain
Yours very truly
ATTORNEYGENERALOF TEXAS
AWtAW/cge BY
APPRaVED: Ardell Williams
ATTORNEYGENERALOF TEXAS Assistant