Untitled Texas Attorney General Opinion ( 1939 )

Hon. H. A. Hodges Opinion No. O-q01
.County Auditor Re: Is a constable or sheriff entitled
Williamson~ County to the fee for arrest when he is present
Georgetown, Texas and the arrest Is made by the Highway
Patrol? When a person is arrested for
speeding and comes ln to, the office of
the. justice of ~the peace or mails the re-
Dear Sir: mittance what fees may be assessed?
Your request for an opinion on the, above stated ques-
tions has been received by this office.
Article 1056, C.C.P., reads in part as follows::
“The following fees shall be allowed the sher-
iff, or other peace officer performing. the same
services in misdemeanor case, to be taxed against
the .defendant on conviction:
“1. For executing each warrant of arrest or
capias, or making arrest without warrant, two ‘dol-
1WS.
“2 . For summoning each witness, seventy-five
cents.
“3. For serving any writ not otherwise pro-
vided for, one dollar.
“4. For taking and approving each bond, end
returning the same to the court house, when neces-
sary, one dollar and fifty cents.
“5. For each commitment or release, one dol-
lar .
“6. Jury fee, in each case where a jury is
actually summoned,, one dollar.. . .I’
We see from this statute that each fee is allowed for
a specific service performed. If then Highway Patrol makes the
arrest and the constable or sheriff does not participate in the
arrest in any manner, he is not entitled to a fee in the case.
Hon. H. A. Hodges, page 2 (O-9Cl)
The constable or sheriff is only entitled to fees for services
he performs as set out In Article 1065, C.C.P., supra.
On May 11, 1939, this department held in opinion No.
O-,778, that when a constable accompanies a Highway Patrolman
and actually makes the arrest himself or participates therein,
such constable would be entitled to the fees as provided for by
Article 1065, C.C.Pb However, if the constable merely accompan-
ies the Patrolman when the arrest is made and does not actually
make the arrest himself or participate therein, he would be en-
titled to no fee.
In an opinion wrltten by Hon. Joe Sharp, Assistant
Attorney General, addressed to Hoti. L. 0. Osborne, County Attor-
ney, Canton, Texas 9 on June 14, 1937, this department held that
a sheriff or constable is not entitled to any fees for any serv-
ice or for making any arrest unless he actually made the arrest
himself or participated therein,
On September 2, 1936, this department rendered an opin-
ion addressed to Mr. Allen C. Wilson, County Attorney, Boerne,
Texas, written by Hon. Joe J, ~Alsup, Assistant Attorney General,
holding that the justice of the peace is unauthorized to assess
as part of the costs two dollars for sheriff’s fee, where the
sheriff performed no services in the casea
In Opinion No. 0-106, written by Hon. Claude Boothman,
Assistant Attorney General, addressed to Hon. Thos. A, Wheat,
County Attorney, Liberty, Texas, held that each fee allowed under
Article 1065, C.C,P. is for a specffic service performed and if
the Highway Patrol makes the arrest and the constable does not
participate in the arrest in any manner, he is not entftled to a
fee in the case. The constable Is only entitled, to fees for
services he performs as set out in Article 1065, C.C.P.
This department has repeatedly ruled that a constable
or other peace officer is not entftled to charge, collect or ac-
cept fees unless he actually performed the services set out in
the statute. If the constable or sheriff does not make the ar-
rest, nor t~he commftment nor the release, he certainly cannot
charge, collect or accept a fee for doing so0 A State Highway
Patrolman receives a salary from the State of Texas for his
services 9 and there is no statutory authority in this state w~here-
by a state Highway Patrolman may charge, collect or accept a fee
from a defendant. The salary a State Highway Patrolman receives
from the State of Texas is the only compensatfon to which he is
entitled to receive for performing his duties in arresting par-
ties charged wfth misdemeanors.
Hon. H. A. Hodges, page 3 (@+CU)
We quote from opinion No. O-768 written by Hon. Wm.
J. Fanning, Assistant Attorney General, a&ressed to Hon. Esco
Was;;: County Attorney, Taylor County, Abilene, Texas, as
:
“If a state highway patrolman arrests a defend-
ant in a misdemeanor case and brings the defendant
before the justice of the peace’ and the defendant
pleads guilty and is assessed a fine, the justice
of the peace should not tax an arrest fee against
the defendant.
“For example, If a state highway patrolman ar-
rests a defendant for violation of a misdemeanor
statute and brings the defendant before the justice
of the peace as outlined by law, and the defendant
enters his plea of guilty before the justice of the
peace and is assessed a fine of one dollar and costs,
then this is the following amount which the defend-
ant should be required to pay in discharge of his
fine and costs; to-wit:
“One dollar fine; five dollars fee for the
county attorney; four dollars, trial fee - making a
total of ten dollars.”
You are respectfully advised that it is the opinion
of this department that a constable or a sheriff Is not entitled
,to a fee for arrest when he is present and the arrest is made by
the Highway Patrol. You are further advised that when a person
Is arrested for speeding and comes into the office of the jus-
tice of the peace or malls a remittance, the fees may be assessed
as set forth in the preceding paragraph.
Trusting that the foregoing answers your inquiry, we
remain
Yours very truly
ATTORNEY GENERALOF TEXAS
By /s/ Ardell Williams
Ardell Williams, Assistant
APPROVED JUL 10, 1939
/s/ W. F. Moore
FIRST ASSISTANTATTORNEY
GENERAL
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