-      _

                                                                       R-221




          Hon. Homer D. Eck              Opinion Ra. V-112
          County Auditor
          Fayette County                 Rer   Fees due a constable      and
          La Grange, Texas                     a related matter.
          Dear Mr. Eck:
                              Your request for ,an opinion of this Department
           is substantially            as follows:                           "L,,
                     " : 1':"!~                                        ~.,.)   *
                              "Fags+&8 Oounty has its oounty offioeri
.
                     on a salary basis and its precinct            officers,
                     suoh as the conetible         end justioe   of the peace,
                     on a fee basis.         One e? the constables       arrested
                ,. a defendant in a forgory aaqe,,a~,,t,bta,n.broaght
               -'b him eto "the 'county jr$J.',' 1_ ,'&.,' : " + 1, .~.',
            I /i"$ :                                           * /t,,
             9,,r,*'        '1flIn,view $P'the a&?+e iact$;      ~&&II give
                    me ,your opi,nio& on the”‘fbilowipg        .qises,t,ienr9;
                         “1. How much is the constable entitled
                   to for making the arrest and committing the
                ‘, prisoner?

              ,~,i          “2.   Under the ‘above facts, what mileage
              ,i       is the’ constable   entitled to if he travels 8
               ,I? ,: miles with the warrant to make the arrest and
            .b '* .’ 23 miles ,wfth the prfsener from the point af
        .;.        i:: making ‘the ‘arrest tc the county jail ,,in his
          ,, :i own automobile?
           :,
                        “3 o Does Article    1029’C.C.P.   as amended
                 by the 43rd Legislature      entirely   supersede the
                 old Article    1029 C.C.P. sinoe the old Artiole
                 1029 C.C.P. gives more detailed       fees for services
                 performed by the officer?        In other words, which
                 Article    are we to follow,   the old Article    1029
                 C.C.P. or the new Artiole      1029 C.C,P. as amenaed
                 by the 43rd Legislature      in 1933?11
                       Article 1030 of the Code of Criminal Procedure
          provides    in part as f~ollows:
Hon. Homer D. Xck, Page 2, V-112


            “In each county where there have been cast
      at the’ preceding presidential   election less than
      3,000 votes, the sheriff    or constable shall re-
      osive the following  fees when the charge is a
      felony:
            *. 0 . provided,   that in counties that
      have a population of less than forty thousand
      inhabitants,  as shown by the preceding Federal
      census, the following    fees shall apply:    For
      ezeouting each warrant of arrest or oapias, or
      for making arrest without warrant, when auther-
      iced by law, three dollars and fifteen      cents fcr
      eaoh mile actually and neosssarily     traveled in
      gaing to glaoe or armat,     and far ookt~eping
      prisoners to jail,   mileage a8 provided rer in
      subdivision  4 shall ba allowed;.    e .
            n. . a

            “4.  For removing a prisoner,     for each mile
      going and ooming, including guards and all other
      expewes , when traveling   by railroad,    tan aents;
      whan travellag   otherwise than by railroad,    fltteen
      oente; provided,   that when more than one prisoner
      is semoved at the same time, in aaditirn      to the
      foregsing,   he shall only be allawed ton crnta a
      mile for eaoh edditlonal   prisoner.*
               Pursuant ta the established    departmental TUIW
        of tit&S office and the Comptrollerla    offiea,       Artiiols
3
10 Q, applies to all counties having a population 0r 10114s
tbaa 40,066 inhabitants        according to the pMeading Tad-
oral census regardless        of the number of votes oas$ at
the preoeding presidential         electlo&   Faystrid, Ds,anty has
a pepulation or less than 40,000 inhabitanta;            thrrefors,
;$l..l.      1030 is applioable    to that county agd fta earn-
           0
           Article   1020,   C.C.P.,   provides,   in part,   as
r0iiOws:

            *$herlffs and Constables serving preassa
      and attending any examining oourt in the ex-
      amisation of may releny ease, shall bo antitled
      to such fees a8 are fixed by law fox similar
      services  in misdemaamar oaees in gstnnty Boart
      t@ be paad by the State,  not ta exoasl Fear and
      Mo/lO@ ()e.OO) Dollars in any @BE,ease, raPl
    Hon. Homer D. Eok, ,Page ,3, V-112


         mileage actually    and nedesaarily    traveled in
         going to tha plaos of arrest,      and ror ewirey~~~
         the prisoner or prisoners to jail a8 pravfdatl
         in Articles   1029 and 1030, Code of Criminal Pxv-
         oedine, as the ,faots may be, but no mileage
         whatever shall be paid for summoning or attaoh-
         lng witnesses in the oounty where cat30is pending.
         Provided no sherirr or oonstable ahall, rueeivr
.        rros the State any ld&itional ai.leag8 ror ‘hay
         subsequent arrest ai a derendant in the same ease,
         ore in any other ,oasp in, an examining boar% ‘or in
         any distriot   oourt..based upon the same oharge 6~ up-
         on, the ‘same criminal a&., or growing out of, the safne
         criminal transaction,    ihether the arrest is made
         with or without a warrant, or bei6re.or         after indict-
         ment, and in no eraht shall he be .allewd to dupli-
         oate his reea ror dIeage      r0r natking   crreste;~fith’
         or without warrant, or when twe or. Bmre ~*arrantta
         of arrest or oapieses are served or ooald hard bean
         served on the same defendant on. any one day.7
               In answer to your riw paotual situation, we
    are herewith enclosing a copy OS Opinion Do. O-2574, ren-
    dared ‘by this Department on August 3, 1940. Those fees
    allowed in miedemsanor cm808 (Artiole 1068, C.C,P.) may
    be taxed, b&may net exceed Foar ($4.00) Dollars,    to-
    gether with nileager
                In your second taotu81 81tuat1ent it is the
    opinion   of this Department that the ooastible      would be
    entitlpd t0 riifera     (15#) 0m5    per 8ile r0r,th6 d*t
    tiles, traveled, to the plabe of lrsust and a’total or’
    thirty   (306)’ osnte   er 811e for r&arming said priaoa-
    or to the oounty ja E 1; rirtm      (1!5#) oeatu ror ,the or-
    rioer  and rirteen    (15d) aents ror the’p’riaoner    ,ror erah
    mile actually and neoessrrily      tY!atsleil when travel1
    private oenveyanoe 0 (Binford vao Ilbbinaoa, 244 8.W.30;3            ”
    Rowena?, when traveling      b nil   or btw, the, Wnsfable
    would be entitLed to ten 7 lO#) oents per mile for each
    mile going.ana ooming and ton (lo+!) o(lnts par able ?or
    +urn+ig     said prisoner.
               Inasmuoh as it is the ruling of t,hfa office
    that your- bounty la     rerned by fhe:praris~ions     of Arti-
    cle ,103o, C*,C.P., a Tlsa~sion   or your   thir&   raotual~
    situation  ,is not deemed neosssary,    surri0e    it to say,
    the Legislature,   in ,1933, 43rd Legislature,     dhapter W,
    page 144, only amended Section 5 of Artiole 1029 or the
    Codes of Uriminal~ PEaoedure 0 one or iwre 0r the Artiolen
Hon. Homer D. Eck, Page 4, V-112


or Seotions of an Act may be amended without       reenaating
the entire statute.  (39 Texo Jura, pe 127).

                         -
           1. The fees due and awing a aonstable
     performing servioss   on a fee basis in Fayette
     County, whose population is less than 40,000
     inhabitants  according to the preoeding Federal
     Oensus, are gcverned by the provisions   of Ar-
     ticle  1030, 1020 and 1065 a? the Code ef Crlm-
     inal Prooedare,
            20 A constable    in Fayette Oounty, whose
     population aocording to the preceding Federal
     Census is less than 40,000 inhabitants,        would
     be entitled   to fifteen    (15#) cents per mile for
     the eight miles traveled to the place of arrest
     and a total of thirty      f30#) cents per mile rer
     returning said prisoner to jail:       IS+! for the of-
     ficer and 15# ior the prisener for eaoh mile ad-
     tually   and neoessarily    traveled when traveling
     by private aonveyanae,        (Binford vs. Robinson,
     244 9-W. SO7.)
                                    Yours very truly
                              ATl!ORl0!L!?O5S5lULOFTEEAS



                                    lurnell   Weldrep


                              APPROVED
                                     MAR. 26, 1947

                              iiikdddulyp
                              A'Y!TOIRGIbm
BW:djm:jrb