THB       ATTORNEY                 GENERAL
                                     OF TEXAS
                                    A~JSTXN 11. -
 GERALDC. I&ANN
ATroRNEY        GENJZRAI.


                                                             May 11,    1939

     Hon. Ned McDaniel
     County Attorney
     Wichita County
     Wichita Falls,  Texas

     Dear Sir:                                         Opinion No. O-1078
                                                       Ae:   What fee is a constable
                                                             entitled   when he
                                                             accompanies   the highway
                                                             patrol   in making an arrest?

     Your request  for        an opinion    on the above      stated   question   has been
     received  by this        Department.

     Your   letter    reads    in part   as follows:

     “In many instances     in this county the constable           accompanies       the
     Hiahwav Patrolmen.     or vice versa.        on general   patrol    dutv, and
     sor;letimes for the-specific      purpose of-arresting        specific-persons,
     whereupon all officers       participate      in the arrest    to various
     extents..     Is the Constable      entitled    to a full   or: partial
     arresting   fee in such cases?”

     Article      1065,   Code of   Criminal   Procedure;      reads   in part    as
 .   follows:

     “The following  fees shall  be allowed  the sheriff,     or other
     peace officer  performing  the same services     in misdemeanor cases,
     to be taxed against   the defendant  on conviction:

     “1.    For executing    each warrant of arrest            or capias,    or making
     arrest   without   warrant,  two dollars.”

     Each fee allowed     under this statute   is for a specific    service
     performed.      If the highway patrol   makes the arrest    and the
     constable    does not participate   in the arrest   in any manner, he
     is not entitled     to a fee in the case.    The constable    is only
     entitled    to fees for services   he performed as set out in
     Article    1065, supra.

     On September 2, 1936, this Department rendered an opinion
     addressed   to Mr. Allen C. Wilson,    County Attorney,   Boerne,  Texas,
     written   by Hon. Joe .I. Alsup, Assistant   Attorney   General,  upon
     the same question   as presented   in your inquiry    and held that the
   Hon. Ned McDaniel,       May 11,    1939   Page 2,       0-1078



   Justice   of the Peace is unauthorized   to assess. as part of the
   costs   $2.00 for sheriff’s  fees,  where the sheriff  performed
   no services   in such cases.

   In an opinion wri tten by Hon. Joe Sharp, Assistant       Attorney   General,
   addressed    to Hon. L. 0. Osborne,  County Attorney,    Canton, Texas,
   on June 14, 1937, this Department again passed on the question           we
   now have under consideration     and held that a sheriff     or constable
   is not entitled    to any fees for any service    or for making any
   arrest   unless he actually   made the arrest  himself   or participated
   therein.

  Under the general    rule as discussed      in Texas    Jurisprudence,      Vol.
  34, page 5’15 where two officers       with concurrent      duties    both per-
  form a service   for which a fee is due it should be prorated
  between them in propcrtion        to the work done by each.         Of course,
  this rule would not apply in this instance            as the highway patrol
  could,  in no event,    participate     in the division     since they are
  on a salary.    There is no statutory       provision    authorizing      the
  highway patrol   to collect     the arresting    fee provided      for in
  Article   1065, supra,   under any circumstances.

   You state   in your letter  that the constable  does               in fact make the
   arrest  when he accompanies   the highway patrolmen                on general
   patrol  duty.

  You are respectfully     advised  that it is the opinion       of this
  Department that when the constable       accompanies   the highway patrol-
  men and actually     makes the arrest   himself   or participates      therein
  such constable   would be entitled     to the fees as provided       by
  Article   1065, Code of Criminal    Procedure.     You are further
  advised  that if the Constable     merely accompanies      the highway
+ patrolman when as arrest      is made and does not actually       make the
  arrest  himself  or participate    therein,    he would be entitled       to
  no fee.

   Trusting   that   the   foregoing   answers    your     inquiry,       we remain

                                                 Yours     very   truly

                                         ATTORNEYGENERALOF TEXAS




   AWtAW/cge                            BY
   APPRaVED:                                      Ardell     Williams
   ATTORNEYGENERALOF TEXAS                                  Assistant