Untitled Texas Attorney General Opinion ( 1966 )

Honorable John R. Foster Opinion NO. C-605
County Attorney
Val Verde County Re: Whether the fees made
Del Rio, Texas, 78840 taxable to the Defen-
dant under Article
53,01, Vernon's Code
of Criminal Procedure,
Acts of the 59th Le-
gislature, 1965, may
be taxed against a
defendant irregardless
of whether the duties
relating thereto are
Dear Mr. Foster: actually performed.
This is In response to your request for an opinion
relating to the captioned matter.
The question which you have raised for our conside-
ration may be stated as follows:
Whether the fees made taxable to the
Defendant under Article 53.01, Vernon's
Code of Criminal Procedure, Acts of the 59th
Legislature, 1965, may be taxed against a
defendant irregardlessof whether the duties
relating thereto are actually performed,
Your opinion request reads in part:
n (W)hen the Department of Public
Safety"&'fcera file a complaint, (In the
justice court for highway traffic vlolatlons)
no warrant or summons is Issued until after a
defendant might fail to appear on or before
the time stated on the ticket he is given.
Most of the people respond to the date on
their ticket and pay their fine without having
any warrant served on them. The Department
officers have told the Justices of the Peace
that they are, therefore, not supposed to
collect Sheriffs' or peace officers' fees
for making an arrest or for a commitment or
release.
-2935-
Hon. John R. Foster, page 2 (C-605),
1
11
.(I)t appears to me that it would be
the beit'practice for the Justices of the Peace
to deviate from their practice here and to al-
ways issue a warrant (or summons) upon accepting
a complaint,which warrant Could,be served on
the defendant when he appeared at the time ap-
pointed on his ticket, or turned over to the
Sheriff if no appearance Is made. The Justice
should then collect from the defendant,not
only the fine Imposed, but the Sheriff's or
officer's fee for making the arrest under the
warrant and for the commitmentand release of
the defendant."
Article 53.01, Vernon's Code of Criminal Procedure,
provides:
'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 .eachwarrant of arrest
or caplas, or making arrest without warrant,
$3.00.
"2. For summoning each witness, $1.00.
“3. For serving any writ not otherwise
provided for, $2.00.
"4. For taking and approving each bond,
and returning the same to the courthouse,when
necessary, $2.00.
“5. For each commitment or release, $2.00.
“6. Jury fee, in each case where a jury is
actually summoned, $2.00.
“7. For attending a priaoner on habeas
corpus, when such prisoner, upon a hearing,
has been remanded to custod or held to bail,
for each day's attendance,$4.00.
"8. For conveying a witness attached by
him to any court out of his county, $5.00.
for each day or fractional part thereof, and
his actual necessary expenses by the nearest
-2936-
Hon. John R. Foster, Page 3 (C-605).
practicable public conveyance,the amount
to be stated by said officer, under oath, and
approved by the judge of the court from which
the attachment issued.
"9. For conveying a prisoner after con-
viction to the county jail, for each mile,
going and coming, by the nearest practicable
route by private conveyance, fifteen cents
per mile, or by railway, fifteen cents per
mile.
"lo. For conveying a prisoner arrested
on a warrant or capias issued from another
county to the court or jail of the county from
which the process was issued, for each mile
traveled, going and coming, by the nearest
practicable route, fifteen cents.
"11. For each mile he may be compelled
to travel in executing criminal process and
summoning or attaching witness, fifteen
cents. For traveling in the service of process
not otherwise provided for, the sum of fif:$?n
cents for each mile going and returning.
two or more persons are mentioned in the same
writ, or two or more writs in the same case, he
shall charge only for the distance aczually
and necessarily traveled in the same.
It is the opinion of this office that no fee provided
for by the above 'Articlewas intended to be taxed or collected
until the duty correspondingthereto has been performed. It
is a well settled rule In this State that statutes prescribing
fees for public officials are to be strictly construed against
the officer collecting such fee. Curtin vt Harris County,
111 Tex. 568, 242 S.W. 444 (1922). Lim;sio$ County Robblns,
120 Tex. 341, 38 S.W.2d 580 (1931); yaEla ; Na:arr;:C;zE,
40 s#.W.2d-868(Tex.Clv.App.1931);.M;C . ty
dale, 112 Tex. 20Q. 246 S.W. 654 (1s ._I inford v. Robinson,
ii?'Tex. 84, 244 'S.W.;607(1922); Atty. Gen. Op:hion C-282 (1964).
47 Tex.Jur.2d 213, Public Officers, Set, 168, states,
in part, as follows:
81 .To entitle an officer to receive
fees 0; :ommissions,the receipt thereof must
have been provided for and the amount fixed
by law; and he must have performed the services
-2937-
Hon. John R,,Foster, page 4 (c-605).
for which compensationhas been specified,"
(timphasissupplied)
Your question is answered in the negative. The fees
provided for in Article 53.01 are to be taxed only after
there has been a bona fide performance of each duty corres-
ponding to each fee taxed.
SUMMARY
The fees provided for in Article 53.01 are to
be taxed only after there has been a bona fide
performance of each duty correspondingto each
fee taxed.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
LC:cm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Owen
Sam Kslly
Wade Anderson
Lonny Zwiener
APPRWED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
-2938-