Case Information
*1 THEATTORNEY GENERAL OF ?I?ExAs
Xion. it. Plner Powell
County Attorney
Brown county Erownwood, Texas Opinion No. o-2214
Dear Sir:
Re: Is a constable ln a~~county where the sheriff 1s on a salary basis, entitled to.hls or+glnal arrest fees in a felony case where the defendant is properly 3nalctea and convicted, but sentenced ln district court to the penitentiary or to the county jail, and in which no money Is paid into the court by the defendant?.
Your letter of Air&l 11, 190, requesting an opinion of this department on the above stated question, has been received.
Your letter reads as follows: "What prodedure does a Constable report to collect.hls'arrest fees, where the sheriff In the same county Is paid on a salary basis?
"I refer to a fel&y case, where the defend- ant Is indicted by the &ran&jury, and the case Is disposed of by~a conviction ln the penn or properly sentenced to the county~jall on a .felony charge.
"I refer to Art. 1065, C.C.P.
"It Is our understanding that some constables over the state have been collecting Original arrest fees ln felony cases, where the defeni¶snt Is later Indicted by the grand jury, ani3 the caee disposed of. So far ln this county'the constable has been collect- i;& no fees In such cases, except'where reduced to misdemeanors on the trial of the case, or so reduced by the grad jury upon Indictment.
"Therefore, I would like an opinion on the followln&
"11s a Constable, ln a county where the sheriff ii on a.salary basis, entitled to hls orl%lnal arrest fees, In a felony case, where the defendant Is properly lnalctea and convicted, but .&sentenced ln District Court to the penn or to the county~jall, sncl ln.whlch no ---a-. 4" ..-,A 4n+r. thn nnnmt hu~fhe A~fendmt?‘” *2 Hon. J. Plner Powell, page 2
According to the last Federal Census the population of Brown County Is 26,382 Inhabitants. The county offlclals of sala county are compensated on sn annual salary basis, and the precinct offlclals are compensated on a fee bafils.
Article 1065 Code of kmlnal Procedure provides
certain fees for the sheriff, or bbher peace offlcers'performlng the same services In a misdemeanor casa, to be taxed against defendant on conviction.
Article 1030, Code of Crlmlnal Procedure, specifically provides certain fees for the sherlff'or constable for definite services performed by them In eelony cases ln counties having a population of less than 40,000 Inhabitants, as shown by the preceding Federal Census.
Section 17 of Article 3912e, Vernon's Annotated Civil Statutes, reads, ln part, as follows:
"Sec. 17. (a) The term 'Precinct Officers' as used In this Act means justices of the peace and constables,
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In counties wherein the county officers named In this Act are 'compensated on the b&s of an annual salary, then State of Texas shall not be charged with ma shall not pay any fee or commission to any pre- cinct officer for any services by hlm performed, but said officer shall be paid by the County out of the Officers' Salary Fund such fees and commlsslons as would otherwise be paid him by the State for such serv- ices."
Article 1019 of the Co& of Criminal Procedure reads as follows:
~"If the defendant Is lnalctea for a felony and
upon conviction his punishment Is by fine or conflne- ment In the county jail, or.by ~both such fine and con- flnement In the county jail or convicted of a mlsae- meanor, no costs shall be pala by the State to any officer. All costs In such oases shall be taxed, assessed ana collected :~ as ln mlsdbmeanor cases." In view of the forego& statute& you are respectfully advised that It Is the opinion of this department that ln counties where the county officials are compensated on a salary basis and the precinct officers a&compensated on a fee basis; the constable Is entitled to the.statuto3.y fees for all services actually performed by him ln felony cases,.sala fees to be paid by the o3unty out of the Officers' Salary Fund when sala fees would otherwise be paid hlm by the State fob such services. ,~
. &m. J.’ Plner Powell, Page 3
You are Further advised that where a defendant Is lnalctea for a felony and upon convlctlon hi8 punishment Is by fine or conflne- ment In the county jail, or by both, such fine and conflriement In the county jail or convicted 0r a misdemeanor, no fees can be paId a con- stable ,for services rendered In such cases by thecounty out of the Orflcers’ Salary Fund or any other fund, such fees shall be taxed, assessel ana collected as ln misdemeanor cases.
In felony ca6es where a constable is entitled tofees to be paid out of the Officers’ Salary Fund he shall.be paid on warrants approves by the county auditor In the counties having a county auditor; otherwise all claims against the Officers I Salary Fund shall first have been audited and approved by the commlssloners 1 court of said county and the money shall be disbursed on such approved claims bywrrada drawn by the county treasury on said ma.
!Prustlng that the foregblng fully answers your lnqdry, we remain
Yours very truly ATTORNEX OENERAL OF TEXAS By s/ Ardell Wllll8ms Ardell Williams Assistant AW:obiwc
APPROVED APRIL 23, 1940
s/ Qerald C. ~Mann
ATTORNEY QENERAL OF TEXAS
Approved Opinion Committee by s/BwB Chairman
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