Untitled Texas Attorney General Opinion

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August 24, 1953

Hon. Robert L. Dalby Opinion No. S-87 County Attorney Bowie County Re: Proper charge for mileage Texarkana, Texas by sheriff for service of process where part of such Dear Mr. Dalby: mileage is covered by mail. You have requested an opinion in regard to the following question: "Is the Sheriff of Bowie County en- titled to charge mileage from the county seat to the point where service of process is made, even though a portion of said distance may be covered by the use of mail, or can he charge mileage only for the number of miles actually and personall% travelled in the service of such process? You state that under a,uthorityof Article 1605a, Vernon's Civil Statutes, the Sheriff of Bowie County maintains an office in Texarkana, a distance of about 25 miles from the c0unt.yseat, which is located at Boston, that most of the process issued by the clerk at Boston is mailed to the sheriff at his Texarkana of- fice, and when service of s.uchprocess is completed it is returned by him to the clerk by mail. Articles 1029, 1030, and 1065, Vernon's Code of Criminal Procedure, provide for the fees that the sheriff shall charge in the execution of criminal pro- cess. It will be noted that these articles provide mileage "for each mile actually and necessarily traveled," and mileage "for each mile the officer may be cornelled to travel in executing criminal process, s . .-is added The ordinary signification must be applied to words of general use. Article 10, V.C.S. If statutorj words are unambiguous and clearly and distinctly express

Hon. Robert L. Dalby, page 2 (s-87)

the intent of the legislature, the statute must be given effect according to its terns; Board of Insurance Com- missioners v. Guardian Life Ins. Co., 142 Tex. 630 180 S.W.2d 906 (1944). The words hereinabove underlinid have a clear and definite meaning-in general usage, so these statutes must be applied and enforced as they read. Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037 (1916). Fee statutes are strictly construed and fees are not permitted by implication. Binford v. Robinson, 112 Tex. 86, 244 S.W. 807 (1922); McCalla v. City of Rockdale, 112 Tex. 209, 246 S.W. 654 (1922). Article 3933, V.C.S., provides in part: "Sheriffs and constables shall receive the following fees: 'For traveling in the servioe of any civil process, D . . shall receive . . 0 for each mile going and coming, e . . he shall charge for the distance actually and necessarily traveled in-the service of same." Certainly it could not be said that an officer is traveling in the service of process unless he actually traverses the distance for which mileage is claimed. What has been heretofore said in regard to mileage to be charged in the execution of criminal process applies with equal force to the execution of civil process. Gulf C. & S.F. Ry. v. Dawson, 69 Tex. 519, 7 S.W. 63 . It is therefore our opinion, which is in accord with your conclusion, that the sheriff would be entitled to charge mileage only for the distance he actually and necessarily travels in the execution of process. See Bigham v. Jones, 116 Tex. 348, 291 S.W. 842 (1927)3 Burns v. State, 123 614 61 S.W.2d 512 (1933); Lewis v. Tex'C;6g, 64 S.W.2d 972 (1933). State, 124 Tex,Cr.

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Hon. Robert L. Dalby, page 3 (s-87)

SUMMARY A sheriff is entitled to charge mileage only for the disitance,heactually and neces- sarily travels in the execution of civil and criminal process. Where the papers are trans- mitted by mail overa portion of the distance between the place of issuance and the place of service, the officer is not entitled to mileage based on the distance covered by mall.

Yours very truly, APPROVED: JOHNBER SREPPERD Attorney General J. C. Davis, Jr. County Affair8 Division C. K. Richards BY Reviewer Eugen Brady G;ap-,, Assistant Robert S. Trotti First Assistant EB:am