Untitled Texas Attorney General Opinion ( 1939 )

Juwary l2, 1939 woaw.?.so%tos county .4ttonaey ‘>r~ge, Texas Dear Sir: ~pia&nl No. 3-22 lb:, Fees of County *xttoraeys. Justicea af tlm Peace, Shoriffa, in misdom*Mor Csse8. Tour mpst for sm opi+a OL tb abow. dated Ceeern- kr 20, 1938. addressed to Attorney Genersl rjilliam lv.cCraa has beea nf8rr.d to this Caputrnbnt for attention and reply. ha qnoto your Iettsr as follows: “Pla8ae giw me your opinion in the fol- lowtag qwatioas: ‘(1) In miadonu~or cases w&r+ a Jurtice of thm Peace issws l warrant of armat and aub- poena for witaomes in a err aad phcca them in the haads of th sheriff or coastable for ser- vice and before the sheriff or constable meets ths accused or the witnrsaes, is ths officer tn- titled to charge for fees of arrest aad summoning the witnears or not? ‘(2) lf a peison convicted of l mfsdemeaaor aad the Juatico of the Aace issws a eommitiat to the sheriff and the sheriff does not place the con- victed parson in jaU, but lata him go on a promise to day the fiue and coats in the futura and doer +y it later, is the sheriff entitled to eoilect from the convicted person the fee for commitment and re- leaw7 ‘(3) .Yhea ths sheriff mleraea a coavietod person as nuntioncd in the abow paragraph (2) and later collectes from the convicted person enough mosey to eowr Wfizm, trial fee and attorney Hon. :i;. P. Sexton, January 12, !939, page 2. fee aud perhaps part of the eheriff’r fee, sad then refuses to turn in tbe sum of fine, trial fee and attorney’s fee until be caa collect the whole of alI fine md costs, .hes he the IegsI right.to withhold such fine. trial fee snd sttorwy fee until M cae collect his fee. Is l sh e r iffentttled to a fee for cwnmit- ment sd nlerse whether orn ot the convicted person pays fhu? ‘I will appreciate your opiaioa on the abow qwstioas as the sheriff and justices of the Peace of this county do not seem to agree regarding then uutters,~ . h answer te yeur first inquiry.the rtetutes prescribe coaditioaed upon the certain fees to be prod county officers, performMu of certa~ acts. “Foe as a term lxpnssiw of reaauwra- tioa for public officials meum the remuneratian or compensation or wages allowed by law ia return for their servlees.’ (Vcltmsa v. State, 217 3.3. 378.) To entitle aa efficer to a fee in any case, he must per- form some act to e8rn the same: -To entitle sa officer to receiw fees or canmissioas* * l he must have performed the services for which compensation hro been specified.. (34 Tcx. Jur.. Sec. 113, p. 522). The qwstioa nsoives itself down to one point. la there such a performance of service rendered by the sheriff as to en- title him to a fee I Arrest on a criminai charge hw been defined as “the appnhendixkg or detaining of tha person in order to be forthcoming to snstwr an sIleged or suspected crime.g (15 &iv. JL?). Article 239 of the 1925 Texas Cede of Crimina.i i?rocedure reeds as follows: “A person is said to be arrested when be has actually been placed under restmint or t&en into custody by the officer or person executing ths warrant of errest.~ Texas Jurisprudence, Volume 34, paragraph Li3. sad cases there cited, states that: ‘To entitle an officer to receiw feer or commissions, the receipt thereof must haw bsen provided for and the smount fixed by law; snd he must haw performed the services for which compensation has bean specified.. HO& :V. .?. Sexton, Jaauary l2, 1939. page 3 It i8 trw that our statutes provide that in certain cases mmofficiol may be entitled to a fee, own though not perfonniag any act or service in maid eeae. This is true of l h u nty Atto r a sy , who is entitled to a fee on a plea of guilty in the Justice Court without personally king present, but our statutes proscribing fees for public officials are strictly construed in fever of tbe state, ceenty or muaici~ality, md wless a fee is mpecificaily provided for neae eaa be al- lewd. and the officer cannot be heard to complain if the Legislature bad been more liberai toward other officials than toward him in the matter of compensation for his office, mm he is presumed to know this at the time he sought the office. 1 would like to call your attention further to .~.rticle 1Oll of the 1925 Code of Crirniaei lrocedure, which reads as fouow‘r -No itemo f costs shall b trrPd for a purported service which was not petionned or for s service for which no feo is expressly provided by~law.m You are advised that it is the oaiaioa af this Gapart- meat that fear allowd to officers by statutes arc allowed as cmnpenaation for menicer lctumliy rendered and unlearn the services ai sctuall7 rendered. the officer is entitled to no fee. Therefore, where an sccueed voluntarily appears and entershis plea without having h&d the warrant of arrest served on him by the sheriff, the sheriff would not be entitled to a fee for serving the ~wsrrsnt. The same would be tnm as to serving a subpoena; the sheriff would not be entitled to a fee unless be had actuaily merwd the ssme. In reference to your second inquiry. w are of the opia- ion that our mamwr to the firsr question amswrs the second, for the reason that unlearn the sheriff actually eammitted and released the prisoaer, he would not be entitled to AZIYfee. In answer to your third inquiry. we wish to refer you to Article 317 of the ?enal Code of Texam of 1325, which reeds as fol- lowa: -Aay offiar. jailer. or guard having the legal custody of a person accused or convicted of a misdemeanor who wilfully permits such person to escape or to be rescued slull bs fined BOt exceeding one thousand dollars.’ Wan. Yi. P. Sexton. January 12.1939, page 4 The Court has maid In the came of Lucky vs. Ztate, 14 Tee. 400: *A sheriff who permits s person convicted of misdememor to go at large, when such primo=r has ken committed to jail until the fixta aad costs are paid is guFlty of permitting such prisolur to eaeape.. .’ Artiels 322 of tha Fenal Code also raadm: ‘Amy officer, jailer, or guard who hamthe legsl custody of a person accumed or convicted of a. misdemesaer who negligently perrr:itm much person to eseaps or to be rcscwd shti be fiaed net orceediang film hundred dollars.’ We also wnt to call your stteation to .+rticla 324 of the sauu Code which provides: -Any s&eriff or other officer who wilfully refuses or fails Cram wglect to axeate 3ay lawful process in him haads requiring t&e arrest of I) p er so n lceumed of a misdemeanor whereby tbe lceuud escapes, or who wilfuily refuses to receiw into s jail under him charge or to re- ceiw in him custody mny person lawfully com- mitted to his cumtody on such accusation, shall be fined not exceeding fin hundred doLlarm." A peace officer has ao authority to allow a prisoner time within which to pay a fiae amsesmed against him by the Court. Article 787 of tbe 1925 Code of Criminal Sroeedura of Texas pro- vfde a: “.Ahen a judgrr-nt &as ken rendered against a defendant for a pecuniary fk#. if he im premeat, he shall be irnprimoned ia jail uatfl discharged as provided by law. A certified copy of such judgment shall be sufficient to authori= muchimprisoaxnent.’ Article 788 of the muna Code of Crivniwi Proudun, reds: “lv hen a peeuatary fiae ham been adjudged againat a defendant aot present. 0 capiam mball forthwith be issued for him arrest. The sheriff shall execute tbe same by placieg the defendant in jail.’ Hon. iv. P. .%mt&, Jamuy 12, 1939, paae 5 article 789 of tha Code of Criminal ?rocedure reads *. folloaa: Q%er e lwh c a p k aiaa~a, it s h a ll a ta ts th 8r*ndition 84 amaunt o fth ejudgment a nd th a amountunp a id th e r eo n. a ndeo ¶nmr Pth d e sheriff to tab tha defendant and p&a him in j&I until the amountdue upateuch Judgment and the furtlmr Costa of collecting the aame are paid, or until the defendant is otherwise legally diachargad: If an officer fatla to comply with the order of tha court rsnteacin~ a prisoner to pay a fin8 or go to jail, and permitting the priaonar to 90 at large. than the officer would be guiity of permittinq the priaaner to laupa or refusing to receiw raid priaornr aa set out ia tba Article8 of the Penal Code above. It has lonp hen held by tbia Cepartment that whara only. part of a fina and coata is eollactad, that tha money col- lected should firat go to the paying of coats and the balance, if any. to the amount of the fine, and where thera ia not enoqh collected to pay all of the coats, that the money collected should ba proratad between the dffcara having a fee according to the amount of their fee and one officer baa no priority owr another: Article 949 of the 1925 Coda of Criminal Procedure pro- vide a: ‘ldoney collected by en officer upon reeqnizances, bail bonda and other oblig&iona raeovered upon ia tha name of tha State under any provision 3f this Code, and all fines, forfeitures, judgment8 and jury feea collected under any provision jf this Code, shall forthwith ba paid ova? by tha officers collecting the mama to the County Treasurer of the proper county, after first deducting therefrom the leg& fees and commiaaiona for collecting the same.” In view of the above atatiates, it is our qdnion that the money collected by the sheriff shall forth with be paid owr to t.ka proper partiaa. Namely, paymant of tha coat to the proper officiala antitlad thareto. and tha belance to the County Trerrunr, end in the event there ia not enough to pay all tha fine and coats, then the money shall be prorated aa set out above. In answer to the last sentenca in your third paragraph, yoo are adviaed that this Ceparflrent has held a conferenca opinion, dated January 11, 1939, written by Aaaiatant Atiorrjr General den- jamin aoodall, addreaaed to Hcaorabla C. Burtt ?otWr. County At- torney of San Patricia County, Sinton, Texaa, that Chapter 483 of the General and Special Laws of the Forty-Fifth Lagialature of Texra, same being House Sill NO. 727 3f the Regular 3asaion. aad Hon. V*. P. Sexton, janwry It, 1949, page 4 carried forward as .rrticla 1055 ia Vernon’s -otatad Coda of Crimiaml Procedure, pocket supptment, is void and uaconatituthnal. as king in eontrawntion af s4ction 33 of .xrucia III of tha ConatitutioB of tha Shta of Texas; md that Artiela 1055. Co& ol Criminal ~Procedure, 1925, not having heen repealed,a nd the Mandatory act being usconatitutional and entirely void, is still tha law of Texas, uwi sll fee officara an aubjeet to ite provision. Article 1355, Code of Criminal Procedure. 1925, tha Act sought to ba emended, and the Act which this Le- partmant holds to be the law, now readr: ‘Articla 1055. Half Coat -:fficara. Tha county shall ha liahla to each officer and wit- ness hwin# coata in a misdemeanor wee for only SW-h8lf thereef whem tha defendant has ntiafbd tba &a and coats adjudged against hfminfullby~borin~wor~ou~,on~ county farm. on the public roads. or upon my public works of the county, and to pay such oaa-half of such legal coats as may have been so taxed, not including commiasiana. The County Judge rball iaaw his vrrrrant upon the County Treraurer in favor of the proper party. a nd th e lw shall ti paid out of the road and bridge fund. or other fuada not otherwise ap- propriatrd.” In view of tin above provision of tha 181~.you are advised that if the sheriff actually committed and released the primmer, and the priaowr aatiafied the fine end costs adjudged against him in full hy labor iat he workhouse. on the county farm, on the pub- lic roads, or upon any public works of the county, tha sheriff would ba entitled to --half of the regular fees to be paid by the cou.nqq otberrtae, the sheriff would not be entitled to my fees until and unlaaa the &fen&at paid the fina aad coats adjudged against him. In wither instance would ha W entitlad to any fee unlearn he actually committed aad releraed the prisoner, f~or the reasons set out abow. Trusting that this sufficiently amwere your inquiry, 1 am Yours wry truly. ATTORNZY GENEiGL CF TZ:,XAS BY a/ h. C. ikartin Assistant ti’/..:FG:vmb APTR,3YED ATT3RNEY CZNERAL ffF TEXi:3