Untitled Texas Attorney General Opinion

April 4, 1950 Eon. Robert S. Oalvert Opinion Ho. V-1030. Camptrollerof Public Accounts Re: The arrest and’mileagefees Austin, Texas of a sheriff under the vari- ous circumstancessubmitted. Dear Sir% Your request for an opinion is a8 follows: “This Department has received fee ac- comts from sheriffs, In counties where the other county officers In said county are paid on a fee basis, as follows: ‘1. A defendant was convicted in M&al- loch County of felony theft and sentenced to five years suspended sentence. The Sheriff made claim for $3.00 arrest fee and was paid that amount, no mileage fees were earned or clalmed. The court subsequentlyrevoked the suspended sentence, and the sheriff received a bench warrant from the court directing him to call upon the proper authorities of anoth- er county and pick up the defendant from the jail there and convey him to the McCulloch County jail. The sheriff nov makes a claim for conveyancemileage under the provisions of Article 1030, C.C.P. for this service. Is this mileage properly payable? Would the mileage be payable if the service had been performed on a capias issued under the pro- visions of Article 779, C.C.P.? “2. A defendant was convicted In Mot- leg County of attempted arson and sentenced one to four years in the penitentiaryand was placed on probation.The sheriff claim- ed and was paid both arrest fee and mileage fee for services performed before sentence was given the defendant. The sheriff, sub- sequently, traveled 85 miles in arresting . . Hon. Robert S. Calvert, page 2 (V-1030) the defendant and qonvey$ng Ma back to his county on a warrant for violation of the probation. The sheriff claW,'an arrest fee and mileage fee for thl.sservice. Are elth- er of these fees properly payable? Uould a mileage fee be payable if the service had been performed on a bench warrant? 'This Department has long construed a case to'be disposed of as far as the payment of fees is concernedwhen a suspended sen- tence Is rendered. In this connection,I am enclosing an opinion of your Department dat- ed March 17, 1913, for gou~ convenience. I also am enclosing a copy of an opinion dated August 1, 1934, which deals with a stiilar situation.* We quote the following provisions of ArtZcles 779, 781b, 1020 and 1030, V;C.C.P.% "1: Upon the final conviction of the de- fendant of any other felang, pending the EUS- pension of sentence, the court granting such suspension shall cause a oaplas to issue fop the arrest of the defendant if he is not then In the custody of such court, and during a term of the court, shall pronounce sentence upon the original judgment of conviction, and shall cumulate the ptuzisbment of the first with the punlshinentof any subsequent convic- tion OP ConvIctlons,and in such cases no new trial shall be granted in the first oonvlc- tion, HOP shall the validity OP f@ality of the first convlztlonbe attacked by appeal OP othemlse, and no right of appeal shall exist to test the validity of the judgment of con- viction, sentence upon which was suspended. “2. Upon the final conviction of the de- fendant of any character OF grade of the of- fenses of theft, embezzlement,swindling, oon- version, theft by ballee, or any fraudulent acquisition of personal property, pending the suspension of sentence, the court granting such suspensionmy cause a caplas to issue for the arrest of the defendant,if he is not Eon. Robert S. Calvert, page 3 (V-1030) then in the custody of such court, and during the term of the court my pronounce sentence upon the original judgment of conv%etion,and may cumulate the punishment of the first with the punishment of any such subsequent convic- tion or convictions,and in such cases no new trial shall be granted in the first convlc- eon. The term kay, t as herein used, shall not be construed to be mandatory;” “Art. 781b . . . “Sec. 5. At any time during the period of probation such courts may Issue a warrant for violation of any of the conditions of the probation and cause the defendant to be ar- rested. Any probation and psrole officer, po- lice officer OP other officer with power of arrest may arrest such defendantwithout a warrant upon the request of the judge of such courts; A probationer so arrested may be de- tained in the county jail OF other appropriate place of detention until he can be taken be- fore the court. Such probation and parole of- ficer shall forthwith report such arrest and detention to such courts and subtit in writing a report showing in what manner the probation- er has violated his probation. Thereupon, the court shall cause the Uefendant to be brought, before it and, after a heaping without a jury, may continue or revoke the probation and shall in such case proceed to deal with the case as If there had been no probation. If the defen- dant is arrested In a oounty or district in the State of Texas other than that In which he was convicted,the probation and parole offi- cer, upon the written request of the senteno- Ing judge, shall furnish such courts a report concerning said probationer,and such courts shall have authority after a hearing to con- tinue or revoke probation and shall in such case proceed to deal with the case as if there had been no probation. In such case, the clerk of the court in which the order of revo- cation is Issued shall forward a transcript of such order to the clerk of the court of original jm3sdiction, and the clerk of that court shall proceed as if the order of Fevoca- tlon had been Issued by the court of original Robert S; Calvert, page 4 (V-1030) jurisdiction. Any probationerwho removes himself from the State of Texas without per- mission of the court placing Nm on probation or the court to which jurisdictionhe has been transferredshall be deemed and oonsld- ered a fugitive from justice and shall be sub- ject to extraditionas now provided by law. Ho part of the time that the defendant is on probation shall be consideredas any part of the time that he shall be sentenced to serve. The right of the probationerto appeal to the Court of Crlndnal Appeals for a review of the trial and conviction,as provided by law shall be accorded the probationer at the time he is placed on probation. When he is notified that his probation is revoked for violation of the conditions of probation and he is aalled on to serve a jail or penitentiarysentence he may appeal the revocation." *Sec..31. For the purpose of determining when fees are to be paid to any officer or of- floe, the placing of the defendant on proba- tion shall be considereda.final disposition of that case, without the necessity of waltlag for the terminationof the period of probation or suspension of sentence,' "Art. 1020 6 i . 'Sheriffsand Constables serving process and attendingany exam&lng court in the ex- amination of any felony case, shall be entit- led to such fees as are fixed by law for elm- ilar services in nilsdemeanor cases in County Court to be id b the State, not to exceed Four and Top" 100 ($x+00) Dollars ¶.nany one case, and mileage actually and necessarily traveled in going to the~place of arrest, and for conveying the prisoner or prisoners to jail as provided in Articles 1029 and 1030, Code of Criminal Procedure, as the facts may be, but no mileage whatever shall be paid for summoning or attaching witnesses in the coun- ty where case Is pending. Provided no sheriff or constable shall receive hsn the State any additicmalmileaRe for any subsequentarrest of a defendant In the same case. or in an??oth- er oase in an examining court or In any distrZct Hon. Robert S. Calvert, Page 5 (v-1030) court based UPOIIthe same charne or uuon the same criminal act. or arowina out of the same criminal transaction.whether the am-eat is made with or wtthout a warrant* or before or after izrdictment.and in no event shall he be allowed to duplicate hls fees for mlleane for maklnu arrests, with or without warrant. or when two or more warrants of arrest or caDi- ases are served or could have been served on ‘fbesame defendant on any one dae.”(Empbasls added.I “Art. 1030 . . . “In each county where there have been cast at the preceding presidentialelection less than 3000 votes, the sheriff OP consta- ble shall receive the following fees when the charge is a felony: “1. FOP executing each warrant of arrest or capias, OP for plakingarrest without war- rant, when authorized by law, the sum of one dollar; and five cents for each mile actually and necessarily traveled in going to place of arrest, and for conveying the prisoner or pri- soners to jail, tileage, as provided for in subdivision4 shall be allowed: provided, that In counties that have a population of less than forty thousand inhabitants,as shown by the preceding Federal oensus,thefollowing fees shall apply: FOP executing each warrant of arrest or caplas, OP for making arrest without warrant, when authorizedby law, three dollars and fifteen cents for each tile actually and necessarily traveled In going to place of arrest, and for conveyingprisoners to jail, mileage as provided for in subdivi- sion 4 shall be allowed; and one dollaf;shall be allowed for the approval of a bond. “4. For removing a prisoner, for each mile going and coming, Including guards and all other expenses,when travelingby rail- road, ten cents; when traveling otherwise than by railroad, fifteen cents; provided, that when more than one prisoner Is removed at the same time, in addltlon to the forego- Hon. Robert S; Calvert, page 6 (V-1030) ing, he shall only be allowed ten cents a mile for each additional prisoner.' Uhere a defendant convicted of a felony is granted a suspended sentence and during the period of suapenslonhe is finally convicted of a felony or ~sozue other crlme named in Article 779 which requires the court to revoke the suspended sentbnce, the court in which he was originally convicted is authorieed to i8- 8Ue a caplaa for Ns arrest under the provisions of Article 779. If a defendant convicted of a felony 18 placed on probation and he later violates any provisions of the probation, the aourt granting the probation is authorized by Article 781b to issue a warrant for hi8 arrest. In Attorney General Opinion Ho. 3011, dated December 13, 1937, and approved in Opinion 190,V-1008, it was held that a bench warrant is not contemplatedas a warrant of arrest OP capias as provided in subclivl- 8ion 1 of Article 1029, but it is merely m order by the District Judge for the sheriff to proceed to a cer- tain place and get a prisoner whom he has already had in custody and upon whom he has already served a caplas or warrant of arrest. We quote the followlag from said opinion: "A bench warrant is a common law process not defined by the Statute of Texas, and al- though the courts In Oxford va Berry, 170 B.W. 83, 204 MZch. 197, and in Rx Parte Lowe, 251 S.W. 506, have defined a bench warrant as a warrant of arrest, they further say that it is sometimes used to bring a convict confined in the penitentiaryto trial In another case, and we are of the opinion that a bench warrant 18 not contemplatedas being a warrant of arrest OP capias as provided in SUbdiviBfon 1 of Ar- ticle 1029, but it is merely an order by the District Judge in ca8es such as those submit- ted In your question for the sheriff to pro- ceed to a certain place and get a prisoner whom he has already had in custody and upon whom he has already served the capias or war- rant of arrest and returned the body of such prisoner to the court ls8ting the order. It is not an ordinarywarrant of arrest direct- ing the sheriff to arrest the person named Hon. Robert S. Calvert, page 7 (V-1030) therein where ever found, but on the other hand it is an order directed to the officer or person having custody of the prisoner or- dering such officer or other person to de- liver the prisoner to the sheriff for the purpose of convepng him to the court issu- ing the warrant. In Gaines vi State, 53 SiW. 623 (Tex. Calm. t in discussing the effect of a benah : "Appellant excepted to the action of the court in hav him brought from the peniten- tiary at Rus e being confined there onan- other Case) t0 stand hi8 trial in this case, It being contended that It was not competent for the state to do this. There is nothing in this contention. While we know of no pro- cedure authorized by legislationto bring a defendant from the penitentiaryto scanecourt for trial in another 0888, yet there is no law to the contrary, and euoh has been the usual practice; and we fall to see how a de- fendant can be heard to complain that the pen- itentiarg authorities surrenderedhim to the local authorities for trial on some indictment pending against him. The legislaturehas au- thorized the penitentiaryboard to make cer- tain rules in regard to the conduct of the convicts confined and under their charge, and we understand the prison authoritieshave pro- vided a rule recognizingthe authority of diS- trict judges to Issue wz$ts for prisoners con- fined in the penitentiaryto be brought before the court for trial in any case that may be pending against them. This would seem to be sufficientauthority'tobr%ng the prisoner be- fore the court." Although a bench warrant may at Waes be wed as a warrant of arrest (Rx Parte Lowe, 251, SiW.506, Tex; Grim. 1923), it 18 OUP opinion, in view of the foregoing, that asaIpatter of practice the courts of this State do not use the bench warrant for the purpose of arrest but on the other hand it is used as an order directed to the person or officer having custody of the prisoner Order- ing such officer or other person to deliver the prisoner to the sheriff for the purpose of conveyinghim to the Eon. Robert S. Calvert, page 8 (V-1030) court issuing the warrant. Therefore, a bench warrant as used by the OOUrt8 of this State is not a warrant of arrest,withfnthe meaning of Article 1020, V.C.C.P. In Attorney General Opinion dated August 1, 1934, to the Comptroller,this office was construingthe above quoted provisions of Article 1020. The question was whether or not said provisions prohibited the pay- ment of mileage fee8 to a sheriff who executes a capias under Article 819, V.C.C.P., which provide8 that a capi- as for the arrest of the defendant may be Issued where the Court of Criminal Appeal8 ha8 affirmed a conviction in a felony case; It wa8 held in this opinion that the prohibition contained in Article 1020 wa8 not l-ted to examining trials but applied to any subsequentarrest in the same case or growing out of the same arimlnal trans- action whether the arrest was made before or after ln- dictment. Therefore, it is our opinion that the provi- sions of Article 1020 would apply to subsequentarrests of a defendant for violation of his suspended sentence OF probation, since it 18 an arrest in the same case or the arrest arises out of the 8am criminal transaction; The facts contained in your first question re- veal that the sheriff received the bench wamant dlrect- lng him to call upon the proper authorities of another county and pick up the defendant and convey him to the McCulloch County jail; As noted above, this does not constitutea warrant of arrest within the meaning of Article 1020, and since the prohibition contained in Article 1020 applies to 'any subsequentarrest of a de- fendant in the 8ame case;" this prohibitionwould not amly. Furthermore, the prohibitionIn Article 1020 applies to "additionaltileage." Therefore, the prohl- bition does not apply where the sheriff In question ha8 not received, up to that time, an mileage, and you are advised that he Is entitled to ti -s cage fees provided for in subdivision4 of Article 1030 for removing a prisoner. If a capias were issued rather than a bench warrant, the sheriff would be entitled to mileage fees provided for in Article 1030 unless he has already been bald mlleage fees in a prior arrest In the same case or in an arrest arising out of the 8sIU0criminal transac- tion. . Hon. Robert S. Calvert, page 9 (V-1030) Section 5 of Article 781b above quoted, show8 that a revocation of probation for a violation of any of the condition8 of the probation is a continuationof the original case; Therefore an arrest for violation of probation is an arrest arising out of the Same case or one growing out of the same criminal tranaaotionwithin the m8anlng of Article 1020. The facts in your second question show that the sheriff has received arrest fees and mileage fees for services performed before the original sentence. There- fore, it is our opinion that the prOViSi0nS of Article 1020 prohibit the sheriff from receiving additionalmlle- age fees for making an arrest of the defendant and oon- veying him back to his county on a warrent of arrest for violation of the probation. If the service referred to had been performed on a bench warrant rather than a warrant of arrest as contemplatedabove, the sheriff would be entitled to his mileage fees under the prOVi8iOnS of subdivision 4 of Article 1030 for the rea8onS stated in our answer to your first question. The sheriff who executes a bench warrant on a defendant whose suspended sentence ha8 been revoked or on a defendant on probation who has Violated any of the conditions of the probation, Is entitled to mlleage fees pursu- ant to the provisions of subdivision4 of Ar- ticle 1030, V.C.C.P., and the prohibition contained in Article 1020, V.C.C;PI, against the payment of an additionaltileage fee in the 8ame case or arising out of the same crlm- inal transactionI.8not applicable. The sher- iff who executes a capias on a defendant whose suspended sentence has been revoked would be entitlea to mileage fees provided for in sub- division 4 of Article 1030, unless he has al- ready been paid mlleage fees in a prior arrest in th8 same 0888 or in an arrest arising out of the same criminal transaction; Th8 sheriff is not entitled to mileage fee8 for 811arrest of the defendant violating probation where the sheriff has Pec8lVed arrest and ndleage fee8 prior to the o~iglnal sentence for such subse- quent arrest is an arrest arising out of the Eon. Robert S; Oaloert, page 10 (V-1030) fame criminal transaction. Arts: 779, 781b, 1020 apd 1030, SiW.f506 (Tex. Crl8ii 53 s;w. 623 (Taxi Grin. wo; 3011, dated D8Cemb8r ion.dated August 1; 1934, to the Cmtroll8r; A.@; opinion Bo. v-1008; Your8 very truly, PRICE WRIEL Attorney General APPROVED: J. C; Davis, Jr. County Affairs Division Assistant Charles D; Mathews Executive Asal.StEint JRimw:bh