Case Information
*1 TErE RTrORmEY GENERAL OF %=EXAS
Honorable C. 0. Murdoch
'CountyAttorney
Menard County
Menard, Texas
Dear Sir: Opinion No. O-4058 Re: Is a State Game Warden entitled to collect an arresting fee of $2.00 for making an arrest in misdemeanor, cases i.nvolving the violation of the game laws?
We quote from your letter requesting an opinion of this depart- ment on the above stated question as follows: "Is a State Game Warden entitled to collect an arresting fee, fee of $2.00, for making an arrest in misdemeanor cases envolving the violation of the game laws?
"AHTICLF, NO. 1065 of the Code of Criminal Procedure of
Texas provides:
"'The following fees shall be allowed the sheriff, or other peace officer performing the same services in misde- meanor cases, to be taxed against the defendant on convic- t ion:
"1. For executing each warrant of arrest or cap&s, or making arrest without warrant, two dollars.' "ARTICIZ NO. 4024 of the Civil Statutes of Texas pro- vides:
"'I~making arrests. . ., the Commissioner or his depu- ties shall be allowed the same fees and mileage as sheriffs, the same to be charged and collected as are sheriff's fees.' "Though Article No. above mentioned, probably was,
and I~think it was, repealed by Article 978f of the Penal Code of Texas, which abolished the office of Commissioner, it seems that under ARTICLE No. of the Code of Criminal Procedure Game wardens as 'other peace officers' are entitled to collect fees for making arrests, unless the legislature limits the compensation of Game Wardens under Section 7 of *2 Honorable C. 0. Murdoch, Page 2 (0-4058)
Article 978f, above mentioned, to such an extent that said fees would not be allowed. I do not know of any law that limits same. And, too, under said Section 7 the Game, Fish and Oyster Commission has the power to limit aaid compensa- tion. Since I do not know of any regulation of the said Commission or law prohibiting or limiting the compensation of Game Wardens to the extent that they cannot collect fees for making arrest, it is my opinion tbat they may, until such limitations are placed upon them. However, I do not have a copy of the regulations of sai,d Cormslesion."
Senate Bill No. 83, Acts of the 4lst Legislature, Regular Ses- sion, 1929, (Article 978f, VernonPa Annotated Penal Code) was an act abolishing the office of Game, Fl.sh and Oyster Commissioner and creat- ing the Game, Fish and Oyster COmmisaion; vesting all of the authority, power aa autiea ana functions of saia Commissioner in the Game, Fish and Oyster Commission created and provided for in the Act; providing for the appointment, compensation, bond, duties and functions of the Game, Fish and Oyster Commission, providing for an Executive Secretary, Assistant Executive Secretary, to be appointed by the Commission and providing for all necessary Game and Fish Wardens, Division Head6 and other employees of the Game, Fish and Oyster Commission, and changing the law of the State of Texas in such respect;6 as necessary in order to carry out the purposes of the Act; enat:tin.g the necessary matters and things incidental the purpose and subject of the Act; making the necessary appropriation out of the State Treasury; providing that the Act would take effect, declaring the rule of construction, repealing all laws and parts of laws in conflict therewith and declaring an emer- gency e
Section 7 of the above menti.oned Act expressly provides in part, '. . . the compensation of all divi,sion beads, Game and Fish Ward- ens and other employees of the Game, Fish and Oyster Commission, herein provided for, shall be fixed by the Game, Fish and Oyster Commission; provided that the Legislature in each biennial appropriation bill shall fix the maximum compensation to be paid to such division heads, Game Wardens and other employees."
Senate Bill No. 423, Acts of the !+7th Legislature, Regular Session, 1941, is a general appropriation b5.11 for the executive and administrative departments of the State government. The salaries of Game and Fish Wardens for the fiscal years ending August 31, 1942, and August 31, 1943, are appropriated thereh
The Game and Fish Wardens of this State are compensated on an annual salary basis and no compensation or fees are allowed for their services a8 such, other than the compensation provided in the General Appropriation Bill above mentioned.
We quote from an opinion of this department written September 1936, addressed to the Game, Fish and Oyster Commission, Austin, Texas, written by Honorable Harry S. Pollard, as follows:
Honorable C. 0. Murdoch, Page 3 (O-4058)
II . . * As none of the game and fish wardens or other employee6 of the Geme, Fieh 80 Oyeter Commie~ion are entitled to collect, receive and retain for their pereonal uee and benefit any arreet fees allowed by law, which are aseeaeed and collected 88 coets of court, they would not be entitled to retain for their perennal uee any part of the fines or penalties asseaaed for violatione of the pollution lawe, even if Articlea and 951, aa amended, of the Revised Code of Criminal Procedure of 1925 were applicable to crlmi- nal cases arising under the pollution etatuter. While it 16 provided by legirlative eliactment that the Dame, Fish & Oyr- ter COmIIIiBEiOn is entitled to collect ana receive the 8am.e fees and mileage as rheriffs in making arreste, eummoning witnesses and serving processes, such feee and mileage to be charged end collected ae are sheriff's fees, such items can- not lawfully be retained as the personal property ,of the ar- resting officer. As respects game and fish wardens end other employee6 of the Game, Fish & Oyster Commission, such fees when assersed and collected.must be accounted for and remit- ted to the Commission end by it deposited in the State Treae- ury to the credit of the proper fund." We are enclosing a copy of the above mentioned opinion for your information.
Yours very truly APPROVED NOV 4, 1941 ATTORNEY GENERALOF!CEXAS Id Grover Sellers
FIRSTASSISMNl' By /e/ Ardell Williame Ardell Williame ATPORNNY GNNNRAL Aasietant AW:LM:I&l
KNCLOGURE
APPROVED OPINION COMMITPE BY /e/ Bh'B CRAIRM4N