Untitled Texas Attorney General Opinion ( 1986 )

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Honorable Mike Driscoll Opinion No. JM-601
Harris County Attorney
1001 Preston, Suite 634 Re: Duty of a sheriff to comply with
Houston, Texas 77002 the requirements of article 38.33 of
the Code of Criminal Procedure re-
garding information to be obtained
from a defendant convicted of driving
while intoxicated
Dear Mr. Driscoll:
You request our opinion in regard to the duty of the sheriff of
Harris County under section 1 of article 38.33 of the Code of Criminal
Procedure. That section provides in part the following:
When a person is finally convicted of an
offense of driving while intoxicated or [in-
voluntary intoxication while operating a motor
vehicle], the clerk of the court shall mail a
notice of the conviction to the sheriff of the
Code Grim. Proc. art. 38.33, $1. You ask how the sheriff of Harris
County may comply with the statutory requirements of section 1 of
article 38.33 of the Code of Criminal Procedure when such records are
not available in the sheriff's office. You indicate that this statute
requires the sheriff to compile information from law enforcement
agencies involved in the offense. In Rarris County, a minimum of 32
municipal police agencies, eight constables' precinct offices, the
sheriff's department and the Texas Department of Public Safety are
involved in the prosecution of these offenses. The sheriff's office
also indicates that some of these agencies do not photograph or
fingerprint persons they arrest, and the majority of these defendants
are never booked into the county jail, with the result that there is
no photograph or fingerprint card.
p. 2687
Honorable Mike Driscoll - Page 2 (JM-601)
Section 1 explicitly provides that the sheriff shall compile
information "made by a law enforcement agency in connection with that
offense." If the information has not been gathered by the law
enforcement agencies involved in the offenses, the sheriff is under no
duty to generate the information. We believe that the sheriff's duty
under section 1 extends only to compiling information previously made
by a law enforcement agency. Only this information should be sent to
the clerk's office. We also believe that this construction of section
1 is consistent with the legislature's purpose in enacting article
38.33 - i.e., to Preserve evidence to be used in subsequent criminal
proceedings See Patterson v. City of Dallas, 355 S.W.2d 838 (Tex.
Civ. App. - Dallas 1962, writ ref'd n.r.e.) (statute should be
construed to give effect to legislative intent).
The sheriff's office has also informed us that its Identification
Division has the responsibility of compiling the required information
and providing it to the clerk's office. The division has a staff of
21 persons who are primarily responsible for photographing and
fingerprinting prisoners in the county jail, as well as providing
forensic services, photo-lab and fingerprint experts for the criminal
courts. These deputies processed 82,161 prisoners during 1984. You
argue that the division is making every effort to comply with section
1 of article 38.33, but that it is impossible to do so.
It is obvious that the sheriff has an absolute legal duty to
compile the information which is listed in section 1. Attorney
General Opinion E-595 (1975) held that where a sheriff has an absolute
legal duty to perform a function of his office, the lack of a
sufficient number of deputies or inadequate funding will not excuse
his nonperformance. If the sheriff lacks sufficient staff to comply
with section 1 of article 38.33 of the Code of Criminal Procedure, he
may make an application to the commissioners court in compliance with
article 3902, V.T.C.S. However, the commissioners court has
reasonable discretion in funding the sheriff's office. See V.T.C.S.
art. 3902; see also Attorney General Opinion R-595 (1975).-
SUMMARY
A sheriff's duty under section 1 of article
38.33 of the Code of Criminal Procedure extends
only to compiling the described information pre-
viously made by a law enforcement agency. Only
this information is required to be sent to the
clerk's office. The sheriff is under no indepen-
dent duty to generate the information.
The lack of a sufficient staff or inadequate
funding will not excuse a sheriff's nonperformance
of an absolute legal duty.
p. 2688
Honorable Mike Driscoll - Page 3 (JM-601)
MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
p. 2689