Untitled Texas Attorney General Opinion ( 1946 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honoreble Thorn8 H . Robert 8011
County Attorney, Camp County
Pitt rburg, Teur
Dear Sir: Oplaloa no. o-7153
RI: Cm rharlff iO&aiiJ luk0
charge r0r ltten4lng 8COIa8
q u o ted l 8 sollourt
to the 8cene of
1 at the 8cene
1 injured, an4
h8 sherlfr take8
````````m``-
under taker.
an
r the injured
cal attention.
over four hours
Upon the arrival af the dead man’s
fath.d, the next day after the accident, the sheriff
&urned .the dead man’s personal effects over to the
iabe?, who asked the sheriff, what he owed him.
The 8heriff replied that he thought $20.00 would be
a lab payment.
Honorable Thomas E. Robertron - Page 2
“The qw8tfon 8ubmitted f8: Under these
factr, cm the Sheriff legally make a charge
for thlr rervlce ren4ere47
“18 thlr collection un4er the above fact8
in vlolatlon of Art. 365 P.C.1”
Article 41, Code of Criminal Proce4ure. provides ln
part that each 8herlff -11 be a oonwrvetor of the peace ia
hlr aount~, an4 rhll lr r er t
all offender8 against the laur of
the State, in hi8 vlev or hear log, 4114 take them before the
proper court Sor exminatlon or trial.
Articlee 968-989, Code or Crbnhel nocedure, pro-
vider for proosedingr ln lnque8tr upon 4ea4 bodle8.
Uhlle the rherlff, a8 l “con8er?ator of the peace”
vould 8eem to be within the rcope of hi8 offlclal duty la
attending promptly the 8cene of a violent death ulthln his
county bad the 8Ub8eqWnt 1nQwrt thereon, yet he 18 not en-
titled to a fee of office for r;uch attendance for the rea8on
that now Is provided by lnw. See enclo8e4 copy of Opinion
No. O-5432 for rlmllar holding in regard to constable ‘8 fees.
Of courae, if an lrre8t 18 made by virtue of such lnvestlgation
of the fatality than the regular fees provided by law vould be
avalleble.
It 18 well Irettled a8 law that an officer 18 not
entitled to receive any CompenMtioa for hi8 offlclal services
other than that which ha8 beea provided by law. Be may not
recover from third perscm compensatlm for the perfcrnance
of an act within the 8cope of his official duties. See en-
closed copy of Opinion 80. O-773, and als3 34 Tex. Jur. 53’;.
As to acts which an officer is under n3 o’cligatlzn
to perform because of his official character, he stand3 as
does any nonof f 1c :a1 person; what such a person may lawfully
do he may 40, and contracts vhlch the private lndivldual may
make and enforce he may make and enforce. 34 lex. Jur. 534-
535 ;
I
Honorable Thoma8 E. Robert ran - Page 2
ffter l c a r eful M a r c h 0s the rtatute8 ve are UQ-
able to f la4 any off loibl duty placed upon a rher ltf to take
charge 0s the perronal belonging8 0s an accident victim or,
however laudable it MJ be, to carry the injured to a horpltal
or call an undertaker for the dead. Thlr vould seem to be a
duty coaunon to all per8on8, private or 0rriciai, owed to any
human in di8tre88. Any oharge made for ruch 8ervice8 rendered
vould rtaad or fall un4er the civil lav pertaining to recover-
le8 on oontraotr or qwntum merult. In no event vould it be
COnlridOred a8 a fee Of Off iOe.
Article 365, Penal Code of Texar, 18 a8 fOiiOV8:
‘Ifany offlcar or per8oa ruthorlred by lav to
dewad or receive fee8 0s 0rrice, 8hall ~iiiruii~
collect for himwlf or for another any fee or fee8
not alloved by lav, or any money a8 a purported fee
for a 8ervlee or act not done, or any fee or Seer
due him by lav in exca88 0s the fee or fee8 alloved
by lav for such aervice8, he shall be confined in
the penitentiary not IS88 than ~VO or more than
five years for each offense.n
It 18 plain that raid next lforementlone4 article
deal8 only ulth fee8 for an offlclal act done or for the
failure to 40 6n 0rrlciai
--- &. -
Therefore, unle88 raid 8herlff collect3 or collected
8ald sum of money a8 a fee for the doing of an official act or
for his failure to do an official act which it was hLs legal
duty to do, we are constrained TV hold that he has not violated
any law.
Yours very truly
ATTORNEYOENZN OF TEXAS
By &&-IL+<- ??lgLzGj
Robert L. kttlmore, Jr.
RLL:zd Assistant
Encl.
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