September 11, 1950

Hon. Clyde Fillmore         Opinion NO. v-110!&
District Attorney
Wichita County             R0: Payment of fees and mll-
Wichita Falls, Texas           cage to arresting officers
           I'                  when the defendant waives
                               examining trial, the Jus-
                               tice of the Peace sets
                               ;z;dtya the Grand Jury
                                      .
Dear Mr. Fillmore:
           Your request for an opinion reads In part as
follows:
         “1s arresting officer ditiea to
    arresting fee and mileage of one charged by
    oomplaint in Justice Court and who, upon
    arrest, appears before Jus~lcr of the Peace
    waives examiningtrial Justice of the Peat:
    sets his bona and the defendant Is Indicted
    at folkwing session of grand j~ry?~
          This office has ruled in previous opinions
that officers are entitled to their statutory fees for
services actually performed even though the defendant
waives his right to an examlnlngtrial. (Letter opinion
to Hon. Homer C. DeWolfe, State Representative,dated Feb.
27 1931; latter opinion to Hon. Homer L. Pharr District
J&e, Lubbock, Texas, dated Nov. 23, 1929; let{er opinion
to Hon. Gee. H. Shop ard, Comptroller of Public Accounts,
dated,Sept. 9, 1932.p
          however, your request presents a question as to
whether arresting officers are entitled to collect and re-
talrifees and commissionsand als~oa question as to ths
source and method of payment thereof. In this connection
it is noted that Wichita County has a population of more
than 20,000 Inhabitants,and the Justices of the Peace are
compensated on a fee basis. Your attention is invitedto
the following constitutionalprovision and statutes relat-
ing to the payment of fees and commissions.
-   .




    Hon. Clyde Fillmore - Page 2    (V-1105)


              Section 61.of Article XVI of the'Constitutfonof
    Texas provides:
                 "All district officers in the State of
            Texas and all county officers in countfes
            having a population of twenty thousand (20,-
            000) or more, according to the tben last Poe-
            ceding Federal Census, shall be compensated
            on a salarybasis. In all counties in this
            State, the CommissionersCourts shall be au-
            thorized t6 determinewhether precinct offi-
            cers shall be compensated on a fee basis or
            on a salary basis with the exception that
            It shall be mandacory upon the Commissioners
            Court, to compensateall constables,deputy
            constablesand precinct law enforcementoffi-
            cers on a salary basis beginning January 1,
            1949; aa in counties having a po ulatlon of
            less than twenty thousand (20 000P according
            to the then last preceding Federal'Census
            the CommissionersCourts shall also have che
            authority to determine whether county officers
            shall be compensatedon a fee basis or on a
            salary basis, with the exception that it shall
            be mandatory upon the CommissionersCourts to
            compensateall sheriffs, deputy sheriffs, coun-
            ty law enforcementofficers Including sheriffs
            who also perform the duties of assessor and
            collector of taxes, and their deputies, on a
            salary basis beginning January 1, 1949.
                 "All fees earned by district, county and
            precinct officers shall be paid Into the coun-
            ty treasury where earned for the account of the
            proper fund, provided that fees Incurred by the
            State, county and any municipalityor In case
            where a pauper's oath Is filed, shall be paid
            into the county treasury when collectedand pro-
            vldedthat where any officer is compensated
            wholly on a fee basis such fees may be retained
            by such officer or paid Into the treasury of the
            county as the CommlsslonersCourt may direct.
            All Notaries Public, county surveyors and public
            ireighersshall continue to be compensatedon a
            fee basis."
                 Section 1 of Article 39120, V.C.S., provides In
        part:
Hon. Clyde Fillmore, Page 3   (V-1105)


         "No district officer shall be paid by
    the State of Texas any fees or commission
    for any service performed by him; nor shall
    the State or any county pay to any county
    officer in any county containinga population
    of twenty thousand (20 000) inhabitantsor
    more according to the iast preceding Federal
    Census any fee or commission for any service
    by him performed as such officer; + . .n
           Section 17(b) of Article 39120, V.C.S., provides
In part:
           "In counties wherein the county officers
     named in this Act are compensatedon the basis
     of an annual salary, the State of Texas shall
     not be chargad with and shall not pay any fee
     or commission to any precinct officerfor any
     services by him performed but said officer
     shall be paid by the co&y    out of the Offlcers~
     Salary Fund such fees and commissionsas would
     otherwise be paid him by the State for such ser-
     vices."

          We have previously held that the State is prohib-
ited from paying fees to county and precinct officers In
counties having a population of twenty thousand Inhabitants
or more according to the last preceding Federal Census (Art.
39120, Sec. 1, V.C.S.)$ and precinct officers In tiountles
where all the county o ficers are compensatedon a salar
:;$$,(A&,: 39120, Sec. 17, V.C.S.). Atty. Gen. Op. V-72: 8
         You are therefore advised that the State is prohib-
ited &om paying fees or colmnisslons to any arresting offi-
cer (county or precinct) In Wichita County.
          We now turn to the.qnestlonof the county's lla-
billty for the payment of fees to county officers in the in-
stant case. You will observe that the above quoted provisions
of Section 1 of Article 3912s not only prohibit the State from
paying fees to the county officers In your county but also pro-
hibit the county from paying fees to such officers.
          As to Wichita County*s liability for the payment of
fees to precinct officers we direct your attention to the
prg;;lons of Section 3 0) Article 39120, V.C.S., which pro-
Hon. Clyde Fillmore, Page 4   (V-1105)


          “In all cases where the Commlssioners~
     Court shall have determlned that county of-
     ficers or precinct officers in such county
     shall be compensatedfor their services by
     the payment of an annual salary neither
     the State of Texas nor any oour&y shall be
     charged with or pay to any of the officers
     so compensated,any fee or commission for
     the performance of any or all of the duties
     of their offices but such officers shall re-
     ceive said salary in lieu of all other fees,
     commissionsor compensationwhich they would
     otherwise be authorized to retain. . . .I(
          Section 61 of Article XVI of the Constitution
of Texas makes It mandatory that your constables,deputy
constables,and other precinct law enforcementofficers
be compensatedon a salary basis. However, the Commls-
sloners’ Court, In the exercise of.Its discretionunder
the authority of this constitutionalprovision, has deter-
mined that the Justices of the Peace of your county shall
be compensatedon a fee basis. Therefore, the prohibition
against the payment of fess and commissionsby the county
under Section 3 of Article 39126 is not applicable in the
instant situation. This section of Article 3912s would
prohibit the county from paying fees to the precinct ar-
rastlng officers only where &J, precinct officers are com-
pensated on an annual salary basis. Therefore, the con-
stables deputy constables,and other precinct law enforce-
ment of#lcers are entitled to collect from the county out
of the O,fflcers*Salary Fund such fees and commissions *as
would otherwise be paid him by the State for such services,W
but such fees and commissionscannot be retained by them.
They must be depositedwith the County Treasury to the cred-
it of the proper county fund as provided in the ConstJtutlon.



          A fslony defendant1s waiver of examining
     trial doss not preclude collection of law?ul
     fees by arresting officer, but in counties of
     20,000 population or more where precinct offl-
     oers other than constablesand deputy consta-
     bles are compensated on a fee basis the State
     Is prohibited from paying fees or commissions
. ..-   -




            Hon. Clyde FllImors, Page 5   (V-1105)


                to county or precinct arresting officers. The
                county is not llable for the payment of fees
                and commisslons~to .GQQ& arresting officers.
                Constables, deputy constables,and other pry-
                cinct law enforcement officers may collect fees
                and commissionsfrom county, but must return
                same to county treasury.

            APPROVED:                       Yours very truly,
            J. C. Davis Jr.                   PRICE DENIAL
            County Affak Division           Attorney Go
                                                     /J--L


                                     ed
            Everett Rutchinson.
            Executive Assistant
            Charles D. Mathews
            First Assistant                   Assistant

            LT:wb