Untitled Texas Attorney General Opinion ( 1944 )

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable H. A. Hodges
CoULlt~AUditOT, ifilliI3iUBOll COUllty
Oeorgetown, Tera8
3ear Sir: '.
oourt in ths exai@nat.Lon
Your letter
cr this department on
48 r0ii0w8:
the Justice
ir under the Oiiloerr Salary Law
pid a salary and the Preolnot
Orribers``are p&d by fees, and more than 3000 votes
are caqt, in:,,the general elections.
*Age 1029 CCP, Felony tees, doee not give au
amount to be paid either the Sheriff or Constable
for taking bonds but Artiole 1005 CCP allows $1.50 to
Sherirt or Constable ror taking bond in a MISDEXE~NOR
case.
*In my opinion the Constable Is not entitled
to a ree for taking bond in a Felony Exemining Trial
2nd I h&e deducted suoh charges from the acoounts,
however I shall be pleased to have your opinion in
tne rtitter. *
ix. a. A. Hougee, p4ge 2
9
-ticlo 1020, Vernon’s Annotated Code of Criminal
T’rocedure, provider, In Part:
I* l * Sherlrrr and oonstables senlng pro-
oess knd attending any examining court in the examln-
ation 0r any relony case, shall be entitled to suoh
roes ar are..tlxed by law for 8imllar servloer in mir-
demeanor case8 In oounty court to be paid by the State,
not to eroeed four and no/100 ($4.00) dollar8 In any
one case, and mileage aotually and necessarily traveled
in going to the place of arrest, and ror oonveylng the
prisoner or prlsonere to jail ar provided in Articles
1029 and 1030, Code of Criminal Prooedure, as the
iaots may be, but no mileage whatever shall be paid
ror summoning or attaohing witnesses In the oounty
where the ease Is pending. Provided no Sheriff or
Constable shall reoeive~‘trom the State any additional
mileage for any subsequent arrest of ,the defendant in
the same 0380, or in any other oase in an examining
court or in any district oouti based upon the same
charge or upon the same e&id- aot, or grAng out of
the same orlmlnal transaotlon, whether the arrest is
made with or without a warrant, or berore or after
.indiotment, and in no event shall he be allowed to
duplicate his roes for miie%e for making arresta
with or without warrant, or when two or more warrants
of arrest ar oaplases are served or oould havz p;t
served on the same defendant on any one day.
Artiole 1005, Vernon98 Annotated Code of Criminal
Prooedure, allows oertaln reea for derinite servloea performed
whioh shall be paid the Sherirr or other peaoe oftioer performing
the same services In misdemeanor oases. It will be noted that
Article 1020, supra, provides, In effeot, that the Sheriff or
Constable serving process and attending any examining oourt in
the examination ot any felony oaae shall be entitled to suoh fees
as are rixed by law for almilar serrloes in miedemeanor oases ln
oount y oourt , provided, suoh ree shall not exoeed four dollars in
any one 0880, and mileage aotuallg and necessarily traveled In go-
ing to the plaoe of arrest and ior oonveying the prisoner or
prisoners to jail aa provided in Artiole 1029 and article 1030,
Code of Criminal Procedure, as the facts may be. VJflliamson County
has a population of 41,698 inhabitants acoordlng to the 1940 Federal
Census. Therefore, Article 1029, Vernon’s Annotated Code of Crlmina:
Honor.lble H. is. Hodges, pige 3 495
Procedure, is applicable to said oounty.
,irtlole 1055, Vernon’s aotated Code ot Criminal
Procedure, provfdws, in part:
“The following fee8 shall be allowed the
s:lerfrr, or other peaoe oiiloer performing the
snme servioerrin ml6demeanor cases, to be taxed
agaInat the defendant on oonviotlon:
“1. For exeoutlng eaoh warrant or arretrt or
copias, or making arrest without warrant, two dol-
LZS.
“2. For summoning eaoh witness, seventy-rive
uents.
“3. For serving any writ not otherwise provided
ror, one dollar.
“4. For faking and approving each bond, and re-
turning the same to the oourt h&se, when neoessary,
one dollar and fifty cents.~
“5. For each oommltment or release, one dollar.
” * * lr c
Seotion 17 of Article 39120, Vernon’s Annotated Civil
Statutes, reads, in part:
“The term ‘preoinct of’floers* as used in this Act
means justioes of the paace and oonstables. * * * In
counties wherein the county officers named in this Act
are compensated on the basis of an annual salary, the
state of Texas shall not be oharged with and shall not
pay any fee or oominisslon to any precinct orrioer ror
,vly services by him performed, but said officer shall be
-aid by the oountg out or the Officers’ Salary Fund such
fees and commission as would otherwise be paid him by the
State for such services.”
_ 496
Artiole 102O. Vernon'e Annotated Code of Criminal
lrooedure, wa8 asended in 1933, and Sootion 17 of r\rticle JQl2e
raa amended in 1927. Therefore, deotion 17 of Article 39120
is controlling a8 to whom shall pay the above mentioned fee8.
In view of the roregolng Statute8, you are respect-
fully advised that It IS the opinion oi thlr department that
the Constable 18 entitled to a fee for taking a bond in a relony
examining trial and the amount of such fee IS )1.5O a8 allowed
by .rrtiole 1065, rupra; the oonstable 18 entitled to 8uoh feea
as are fixed by law for rlmllar servicer in mirdemsanor oase8
in oountj Court for rerving prooess and attending any sxamlnlng
oourt in thS examfnatlon oi any relony oaee, provldod ruoh tee
shall not exoeed 44.00 In any one ease, and mlleags aotually
aad neceaaarlly traveled in going to the plaoe of arrest, and
for conveying the prisoner or prisoner8 to jail ae provided in
.stiole 1029, Vernon'8 Annotated Code of Criminal Procedure.
Stated dlrrerently, it is the opinion of thls department that
in oountler where the oountp orrlciala axe compensated on a
salary baa18 and the preolnot orricer are oompeneated on a ree
basis, the constable is entitled to the statutory reda for all
services aotually performed by hlm in feloay oaaea handled In
tke examining court, subjeot to the above mentioned llmltationr,
and said reea are to be paid the.oonstable by the oounty out of
the Oifloer8' Salary Fund when fee8 would otherwise be paid him
by the State ror suoh senloer. However, berore the oonetable
la entitled to receive the above mentioned ieeo the defendant
mat be tidloted by the grand jury. Under the provi8lo~8 0r
oticle 1019, Vernon'8 Annotated Code of Criminal Prooedure, and
Seotion 17, AFtlo 39120, Vernon*8 Annotated Civil Statutes if
the derfendant 18 indioted for a telony and upon oonvlotlon hf8
punishment i's by rine or oontlnement in the oounty Jail., or by
both 8uoh rlne and oonflnement In the oounty all, or oonvloted
oi a misdemeanor, no oo8t8 rhall be paid b { de oounty to the
constable. -ill ooet8 in 8uoh easer rhall e taxed, assessed
and oolleoted ar In mlrdeneanor oaaea~ Under the provision8 of
irtlole 1027, Vernon'8 Annotated Code of Criminal Procedure and
Seotion 17 of Article 39120, Verponf8 Annotated Clvll 5tatute8,
in aU oase8 where a defendant is indioted ror a relony but under
the indictment he may be oonvloted Of a misdemeanor or a relonY,
and the pUniShIW3Bt which may be assessed Is a rine, Jail sentence
or both, such rlne and lmprlronment In Jail, the ooU%Yshall PaY
no fees to the constable except where the defendant Is indioted
ror the orrense 0r murder, until the case has been finallY disposed
or in the trial oourt*
Yours very truly
C-H'
Xi:EP