Did a Texas sheriff have to create fingerprints or photographs that no agency had made after a DWI conviction?

Texas AG Opinion JM-601: Sheriff's DWI Record Duty

Plain-English summary

JM-601 concluded that a sheriff's duty under article 38.33 extended only to identification information that a law-enforcement agency had already made in connection with the DWI offense. If no agency had taken a photograph or fingerprints, the sheriff did not have to create them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

The sheriff still had an absolute duty to compile and send the existing information described by the statute. The opinion said a shortage of deputies or inadequate funding did not excuse nonperformance of that duty. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

If staffing was insufficient, the opinion said the sheriff could apply to the commissioners court under article 3902, while recognizing that the court had reasonable discretion over funding. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected in 1986

Sheriffs and identification divisions: JM-601 required them to gather and transmit existing agency records covered by article 38.33, but not to produce a photograph, fingerprint card, or other item that no agency had created. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Police departments, constables, and other arresting agencies: The sheriff's compilation depended on identification material those agencies had already made in connection with the offense. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Commissioners courts: The opinion recognized their reasonable funding discretion, but said inadequate staffing did not erase the sheriff's statutory duty. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Common questions

Did the sheriff have to take new fingerprints after the conviction?

No. JM-601 said the sheriff's duty was to compile information previously made by a law-enforcement agency, not to generate missing information. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

What information had to be sent to the clerk?

The statute discussed in the opinion listed the defendant's signature, fingerprint, driver's-license number, and agency-made photographs, descriptions, or measurements connected with the offense. JM-601 limited the duty to items that already existed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Could lack of staff excuse failure to compile existing records?

No. The opinion said lack of sufficient staff or funding did not excuse nonperformance of an absolute legal duty. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Could the sheriff ask the commissioners court for more staff?

Yes. JM-601 said the sheriff could apply under article 3902, although the commissioners court retained reasonable discretion over funding. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Background and statutory framework

Harris County explained that many municipal police agencies, constables, the sheriff's department, and the Department of Public Safety handled DWI cases, and that some defendants were never photographed, fingerprinted, or booked into the county jail. The county asked how the sheriff could comply when records did not exist in the sheriff's office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Article 38.33 required the court clerk to notify the sheriff after a final DWI conviction and directed the sheriff to compile and send specified identification information made by a law-enforcement agency in connection with the offense. JM-601 treated the phrase "made by a law enforcement agency" as the limit on what the sheriff had to compile. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Key source language

JM-601 stated:

"If the information has not been gathered by the law enforcement agencies involved in the offenses, the sheriff is under no duty to generate the information."

"We believe that the sheriff's duty under section 1 extends only to compiling information previously made by a law enforcement agency."

"The lack of a sufficient staff or inadequate funding will not excuse a sheriff's nonperformance of an absolute legal duty."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Citations and references

Statutory provisions:

• Code of Criminal Procedure article 38.33, section 1
• V.T.C.S. article 3902

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0601
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0601.pdf

Original opinion text

December 29, 1986

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas
77002

Opinion No. JM-601
Re: Duty of a sheriff to comply with
the requirements of article 38.33 of
the Code of Criminal Procedure regarding information to be obtained
from a defendant convicted of driving
while intoxicated

Dear Mr. Driscoll:
You request our opinion in regard to the duty of the sheriff of
Harris County under section 1 of article 38.33 of the Code of Criminal
Procedure. That section provides in part the following:
When a person is finally convicted of an
offense of driving while intoxicated or [involuntary intoxication while operating a motor
vehicle], the clerk of the court shall mail a
notice of the conviction to the sheriff of the

Code Grim. Proc. art. 38.33, $1. You ask how the sheriff of Harris
County may comply with the statutory requirements of section 1 of
article 38.33 of the Code of Criminal Procedure when such records are
not available in the sheriff's office. You indicate that this statute
requires the sheriff to compile information from law enforcement
agencies involved in the offense. In Rarris County, a minimum of 32
municipal police agencies, eight constables' precinct offices, the
sheriff's department and the Texas Department of Public Safety are
involved in the prosecution of these offenses. The sheriff's office
also indicates that some of these agencies do not photograph or
fingerprint persons they arrest, and the majority of these defendants
are never booked into the county jail, with the result that there is
no photograph or fingerprint card.

p. 2687

Honorable Mike Driscoll - Page 2

(JM-601)

Section 1 explicitly provides that the sheriff shall compile
information "made by a law enforcement agency in connection with that
offense."
If the information has not been gathered by the law
enforcement agencies involved in the offenses, the sheriff is under no
duty to generate the information. We believe that the sheriff's duty
under section 1 extends only to compiling information previously made
by a law enforcement agency. Only this information should be sent to
the clerk's office. We also believe that this construction of section
1 is consistent with the legislature's purpose in enacting article
38.33 - i.e., to Preserve evidence to be used in subsequent criminal
proceedings
See Patterson v. City of Dallas, 355 S.W.2d 838 (Tex.
Civ. App. - Dallas 1962, writ ref'd n.r.e.) (statute should be
construed to give effect to legislative intent).
The sheriff's office has also informed us that its Identification
Division has the responsibility of compiling the required information
and providing it to the clerk's office. The division has a staff of
21 persons who are primarily responsible for photographing and
fingerprinting prisoners in the county jail, as well as providing
forensic services, photo-lab and fingerprint experts for the criminal
courts. These deputies processed 82,161 prisoners during 1984. You
argue that the division is making every effort to comply with section
1 of article 38.33, but that it is impossible to do so.
It is obvious that the sheriff has an absolute legal duty to
compile the information which is listed in section 1. Attorney
General Opinion E-595 (1975) held that where a sheriff has an absolute
legal duty to perform a function of his office, the lack of a
sufficient number of deputies or inadequate funding will not excuse
his nonperformance. If the sheriff lacks sufficient staff to comply
with section 1 of article 38.33 of the Code of Criminal Procedure, he
may make an application to the commissioners court in compliance with
However, the commissioners court has
article 3902, V.T.C.S.
reasonable discretion in funding the sheriff's office. See V.T.C.S.
art. 3902; see also Attorney General Opinion R-595 (1975).SUMMARY
A sheriff's duty under section 1 of article
38.33 of the Code of Criminal Procedure extends
only to compiling the described information previously made by a law enforcement agency. Only
this information is required to be sent to the
clerk's office. The sheriff is under no independent duty to generate the information.
The lack of a sufficient staff or inadequate
funding will not excuse a sheriff's nonperformance
of an absolute legal duty.

p. 2688

Honorable Mike Driscoll - Page 3

(JM-601)

MATTOX
Attorney General of Texas
JACK HIGHTOWER
First
Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General

p. 2689