Untitled Texas Attorney General Opinion

February 20, 1950 Eon; Robert S; Calvert Oplniau noi V-1008; C~Dtl'OllOr of Public Ac&unta Re: The payment of fees of the Austin, Texas Sheriff of Walker County for conveyinga primmer fraa the Rmtsvllle penitentiary to a Matrlet Court ia Trav- is county for ttial for fel- Dear Sirr ony. Your Pequeet for m opinion is as follows: wxts DfJpartmenthas received a c1al.mfor fees in a felony a888 submitted by the Sheriff of Walker County; Said fees are olaimed by the aherlff for conveying a primmel. from the Runtsville panitentiaryto At&In where said pr+n~er was wanted for the offense of burgla- ry. The Sheriff of Ualkm County performed this service due to his having reoeived a bench warrant addressed to him and issued by a Mstrlct J -~i~"~e~~~~~t~~~~~~~~- IS county. swers to the following questionar '1; ‘Would this bench warrant be a proper order authorlzIagsaid shelrlffto p6s0= the service of conveying the prisoner out of the sheriff's comty to some other county? "2; Walker County pays its county offi- cers on a fee basis; Would conveyanaefees be properly payable to the Sherlff of Walker Corn- .,. _~ ty uuder the provisions of Article 1030, C.C.P. for this fJertice?” There I.890~statute in Texas autho?ixing the is- suance of 'bench warrants" but at common law and in prac- tice a warrant issued from the.bench or oonrt to compel the appearance of a person In a case is denominatedas "a bench warrant'i" I&XParte Lowe, 251 S;W; 506 (Tex. Crini 1923) (recognleingthe authority of the Strict Judge of Hon. Robert S; Calvert, page 2 (V-1008) Hill county to 1ssuc 8a - Dencn _ -.to the sheriff of - warrant MoLeman County dim sctlng him to deliver a person in his custody to the-sheriffof RI11 County); Gaines v; State, 53 S;W. 623 (Tex; Crimi 1899) (recognizingthe authority of the District Couzrtto issue a bench warrant to the penitentiaryauthorities Uirectlug them to deliver a prisoner for trial). Walker County has a population of 19,868 lnhab- itants according to the last precedingFederal Census and its county officers (with the exception of the sheriff) are compensatedon a fee basis; Therefore, the sheriff may receive felony fees due him from the State. A; G. Opinion V-748. There were cast in Walk? County 2,551 votes in the last presidentialelection. Therefore, the provi- sions of,Article1030; V.C.CiP., are applicable to Walker county; Article 1030, Q;C;C.P., provides in part as fol- lows: "In each county where there have been cast at the preceding presidentialelecttin less than 3000 votes, the sheriff or muSta ble shall receive the following fees when the charge is a felony: "1; FOP executing each warpant of ameat or caplas, or for making arrest without war- rant, when authorizedby law, the sum of one dollar; and five ,centsfor each mile actually and necessarilytraveled in going to place of arrest, and for conveying the prisoner or prisoners to jail, mileage, as provided for in subdlvislon4 shall be allowed; provlded,,that in counties that have a population of less than forty thousand inhabitants,as shown by the preceding Federal census, the followlug fees shall apply? For executing each warrant of arrest or caplas, or for lpaklngarrest without warraut, when authorizedby law, three dollars and fifteen cents for each PcLleaotu- ally and necessarilytraveled in going to place of arrest, and for conveyingprisoners to jail, mileage as provided for in subdivi- siou 4 shall be allowed: and one dollar shall be allowed for the approval of a bond; Ron. Robert S; Calvert, page 3 (Q-1008) “4. For removing a prisoner, for each mile going and coming, Including guards and all other expenses,when traveling by rail- road, ten oents; when traveling otherwise than by railroad, fifteen cents; provided, that when more than one prisoner is removed at the ssme time, In addition to the fore- going, he~shall only be allowed ten cents a lllile for each additional prl.soner.* In discussing a similar question it was held in Attorney General Opinion Bo. 3011, dated December 13, 1937: “A bench warrant Is a common law process not defined by the Statute of Texas, and al- though the courts in Oxford vi Berry, 170 R.W. 83, 204 Hlch, 197, and in k Parte Lowe, 251 S;W. 506, have defined a benah warrant as a warrant of arrest, they further say that it is sometimes used to br.inga convict confined In the penitentiaryto trial in another case, and we are of the opinion that a bench warrant is not contemplatedas being a warrant of ar- rest or caplas as provided in Subdivision 1 of Article 1029, but it is merely an order by the Mstrict Judge In cases such as those submit- ted In your question for the sheriff to pro- ceed to a certain place snd 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 issuing the order; It is not an ordinary warrant,of arrest directing the sheriff to arrest the person named therein where ever found, but on the other hand it Is an order directed to the ofSicer or perscn hav- ing custody of the prisoner ordering such offi- cer or other person to deliver the prisoner to the sheriff for the purpose of conveying Nm to the court Issuing the warrant; I’Incases where the sheriff has not had the prisoner In his custody on the same charge prior to the issuance of the bench warrant, then it is necessary for the sheriff to pro- ceed with a caplas as well as tith a bench warrant to the penitentiaryOP other place for the purpose of arresting a prisoner, and in Ron; Robert s. Calvert, page 4 (v-1008) cases of this kind we are of the opinion that he would be entitled to only five aenta per mile while going to the place of arrest, but in cases such as the question submlttedby you where the sheriff has already taken the prlson- er into custody and has served the caplas upon him, and then the prisoner has been taken to some other jurisdictionand it became necessary for the sheriff to proqeed under a bench war- rant to get the prisoner and bring him to the court issulng the bench warrant, then in that event he is not going to the place of arrest, but is merely going to convey a prisoner to the court, and we are of the opinion that the sher- iff is entitled to mileage as provided In Sub- division 4 of Article 1029, “The Supreme Court of Texas in the case of Blnford v. Robinson, 244 S.Wi 807, has held that the sheriff is entitle3 to ten cents per mile for himself and ten cents per ml18 for the first prisoners,making a total of twenty- cents per mile when traveling by train with the prisoner. Therefore, It would necessarily follov that the sheriff when traveling other- wise than by railroad would be entitled to fourteen cents for himself and fourteen cents for the prisoner POP the mileage traveled with such prisoner. “The fact that this constructionhas been placed upon this statute for a number of years by the Comptrollers8Departmentand the fee of- flcers have acted under such aonstructionover a long period of time, and the Legislatureal- though charged with the knowledge of such con- struction,have not amended or in anyvise chang- ed the wording of such statute, leads us to the conclusionthat it was the legislativeintent that this constmxtion be plaaed upon this act. ‘%e are, therefore, of the opinion that an officer while acting as set forth in the ques- tion propoundedabove should draw fees or mile- age as provided in Subdivision 4 of Article 1029. For example, a sheriff in executing a bench warrant for removing prisoners confined in the State penitentiaryto another county to be tried on a felony charge should receive, when traveling otherwise than by railroad, fourteen Eon; Robert S; Calvert, page 5 (V-1008) cents per mile while going after such prisoner and fourteen cents for himself and fourteen cents for the prisoner, making a total of twen- ty-eight cents per mile while returning the prisoner to the (Jurisdictionof the court issu- ing the warrant. It was held in Attorney ffeneralOpinion Ao. 2967, dated July 25, 1935, that a sheriff would be en- titled to be paid mileage fees for the execution of a bench warrant issued by a Justice Court to a sheriff of another county. It was held in Attorney General Opinion addressed to Ron. lgooreLynn, State Auditor, August 4, 1932, that a sheriff acting under the authority of a bench warrant would be entitled to mlleage fee6 under Ar- ticles 1029 and 1030, VXX .P., for going to and from the State Pen%tentiaryat Huntsville to convey a prison- er back to the county seat to answer a charge of InsanIty pending against himI In answer to your first question you are there- fore advised that the bench warrant referred to by you was a proper order authorizing the sheriff to perform the service of conveying the prisoner to Travis County? In view of the above mentioned Attorney General Gplnions you are advised that the sheP%ff is entitled to be paid mileage fees for the execution df the bench war- rant under the provisions of Article 1030, V;C.C.P. The sheriff of Walker County is entitled to mileage fee8 under the provisions of Article 1030, V.C;C;P;, for the execution of a bench wsrrant issued by a Mstrict Court of another oounta directins this sheriff to convev a mls- oner from the &ate penitentiaryto appear-for trial in a felony case; Gaines vi State, 53 S; W. 623 (Tex. Grim. 1899); IpcP t L 9 G.’ODiZon2E . SiW. 506 (Tex. Grim. 1923): A.ar 2967 dated July 25, 1935;-A. 0. GpikL.onRo. 3011 dated December 13, 1937. Yours very truly, APPROVED: PRICE DARIRL Attornev General J. C. Davis, Jr. county Affairs mvisian Charles D. Mathews Executive Assistant JR:mw:bh