Untitled Texas Attorney General Opinion ( 1944 )

8 / ..... OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GROVERSELLERS ATTORNEY GENERAL Honorable Earlon Martin County Attorcwy leoogdochea County Nacogdocher, Tours Dar sir: an otficer lmfully owed vlth mthorlty * 4rre8tr valve W8e88lMlAt Of th8 sting fee l.nthe ffx- Of CO8t8 to be paid the deiendaat upon 8 being found guilty? te reUue8tlng *n opinion aaptioned 8Ubj8Ct8, ho8 been iOR and reply. Your quer- lty are rccepted in criminal toa of the CoUnty Court. There- like to have an ldvi8Ory opinion or your department a8 to the validity of a juagarentpredicated upon e plea of guilty en- tered during vaCatlOU.n Qu88tlOn IiO.2: "Can a eheriff, ooast@ble, Dspaz’tJlWlt Ot Pub- lic Safety off laer, %‘tS68 L%qUOr Control Board In- BpXtOr, or any other officer lavfUlly endoved vith authority to nrke Wre8te VaiV8 the a8cie88Plsnt of 549 Honorable liarlonMartin, pege 2 the =r-ting fee in the firil3gOf CO8t8 to be paId by the defendant upon hi8 being found guiltyTm In reply to yOW flr8t question, ve Iwe eaclo8Ing this deprartment*sopinion No. O-3090, vhlch WI believe an- 8Ver8 thin QUe8tiOn in the negative. In reply to Your 8ecoud quartion, ve quote from thi8 d8flrtmQt'S OPiQiOn NO. O-768, wherein ve held that a State Bighvay PbtrObbR 18 Wltithd t0 no brr88tlag fee: “YOU me r88peCtfIlllyadvl8ed thbt thl8 E4- portent ha8 repeatedly ruled tbat b con8table or Other Q8bCS Officer 18 not entitled to aharge, collect, or rcoept fee8 unlerr he actually per- formed the 8ervIce8 set out in the 8UtUte. If the constable does not We the wre8t, nor thQ commitmnt nor the rele88e, he certainly oould not Chbrg8, Collect, or 8CCept 8 fee for doing 80. A rtate highway p8trolPan receiver 8 Mliry from the strte of Telar for hi8 8ervice8, and there ir no statutory buthorltg la thlr rtste vhereby a rtbte highvay patrolwm may oharge, collect or raaept l f8e frOIUa defendant. t’h8 88-y 8 8tbtt highV8y QbtrO~n receive8 from the State of Teu8 18 the only compensrtlon to which he I8 entitled to re- ceive for performtag hi8 duti88 in Prre8ting the defendmat clurged with ral8depsanOr. "You are therefore, rk8peutfully edvl8ed t&t if a state hlghvay patrolman 8rre8t8 a defendant iu a ai8demeanor aEi8eand bring8 the defendmt before the ju8tlce of the peace end the defeud8nt plea8 guilty and Is a88e888d a iIRe, the jU8tiCe of the peace ahodd not tax an rrre8t See againrt the de- fendant. "For example, if a state highvsy patrolnmn wrest8 a defendant for violbtlon of a Qi8demNtkor 8tatute and brings the defendant before the ju8tice of the peace a8 outlined by law, end the defendant enter8 his plea of guilty before the ju8tIce of the paace aad 18 888888ed 8 fine Of One dollU and CO8t8, tbn thi8 1s the follovlng amount vueh the defendant should be required to PrY iu di8oMrge of hi8 fine and cO8te, to-vit: aonorable Earlon hartin, page 3 "One dollar ilne; five dollars fee for the county attoPQey; four dollars, trial fee - making a total of ten dollars." Tams Liquor Control Board Inspectors receive a aal- erg from the State and are likewise entitled to no arresting fee. In re@rd to sheriff8 and COQ8table8, your attention is directed to the follovlng statutory QrOVisiOn8. Article 102, Vernon'8 Annotated Pen81 Code provides: "Any county officer or any dlstrlat attorney to whom fees or Cost8 bre rlloved by l&v vho 8hall fall to charge UQ the fees or cost8 thbt may be due under exl8tltp,fJv8,or who Shall remit 8ny fee that lsaybe due under the law, or vho shall fall to mbke the report reclulredby lav, or who 8hll p8y hi deputy, clerk OP..b88i8kQt 8 1888 8UPI thn specified in hi8 worn statement, or reoelve bek a8 8 rebate any part of the compen8atlon alloved such deputy, clerk or sselstant, 8hall be f,lnednot le88 than tventy-fiVe nor more than five hundred dollars. &oh act forbidden by thl8 artiale 18 8 reparbte offense." The Legislature, by Act8 1939, special Lavu, mge 608, Section 1, provided for salaries for county officer8 in COMti88 containing a population of tventy thou8and (20,000) lnbabltants or more and provided for an Offlcers~ galrry Fund. This Aot appea~a 88 Article 3912e, Vernon’s Annotat8d Civil Statutes. Section 5 provides: "It &all be the duty of 811 officers to cbrge and collect in the mbnner 8uthorlGed by law all vhich Bpe permitted by hV to fee8 and ColIlmi88iOll8 be RsSes8ed and collected for all officibl 8erViCe performed by them. A8 and when suck fee8 bre aol- lected they shall be deposited in the OffiCeP8' &laPy Fund, or fund8 provided in this Act. IQ event the ComDli88iOneP8'Court find8 that the fail- upe to collect any fee or eommla8lon Vb8 due to neglect on the part of the officer charged vith the responsibility of collecting a&IQB,the amount ol suCh fee or comml8aloo shall be deducted from i I Honorable Harlan &wti.n, page 4 the U-y Of 8Wh Officer. Before say 8uah de- duction 18 made, the C0m1118810QeP8'Court 8ha11 fuPal8h such officer vlth an ltemlced 8t8tement of the uncollected fee8 with which hi8 bcoou.nt18 to be charged, and sba11 notify ouch officer of the tlm and place for 8 hearing on ~nm, to de- termine whether such officer v&8 guilty of negll- gence, vhich tiPlafOP hearing shrll b8 et leb8t t8Q days 8UbDeQUWAt t0 the t&t8 cd QOtia8. thh88 en officer is charged by lav with the re8pon8lbll- ity Of 001leCtillgfees, the COlari88iOWP8' COUPt Shall Rot IQ any event ppke ray deductions IPom the authorlaed 8alery of 8uch officer." You are accordingly advised that prior to the p88- age of Article 3912e, the arresting officer v&8 entitled to col- lect md retain his fee md fbilure 80 to do va8 EWle 8 pen81 offense . SubseQuent t0 the enactment Of Article 39128, the a~- re8ting ofilcer receiver 8 UrlRry in lieu of 811 feel, co3n- ml88ims ok compenabtlon to which he would othsrvlse be en- titled. Under the provlslon8 of thi8 Act, the officer 18 Cbrg- ed vlth the duty of charging and co11ecting hi8 fee a8 before and paying it into the OfflceP8' SaWy Fund. Should the oom- mi88loner8~ court find that the fbllure to Collect bny fee or corairrlon ~88 due to neglect on the prt of the offloer ah8rg- ed vlth the re8poQ8lbility of co1lecting I&m, the bmount of such fee or commirrlon 8he11 be deduated from hi8 ~l@ry after notice and hearing had thereon 88 provided by the 8tatute. ‘PrU8tiIl& thi8 fti1y 8n8YeP8 yOUP iQQUiPi88, v8 aPe Very truly yOUr8 ATTORREXGXWRRAL OF TRXAR /t. 2. f&--L &---A-k BY H. T. Bob Donahue A88i8tbQt Enclo8ure