..
xc ATT~MNEY GENERAL
OF TEXAS
PRICEDANIEL
ATTORNEY GENERA,.
March 23, 1948
Hon. W. 0. Williams, Opinion No. V-525.
County Auditor,
Grayson County, Re: Authority to pay the travel-
Sherman, Texas ing expenses incurred by the
Sheriff beyond the boundary
of Texas in going to another
a state for a fugitive and re-
turning him to Texas.
Dear Sir I
Your letter requesting an opinion from this of-
fice reads:
“Enclosed herewith is copy of my re-
quest to Hon. Wm. Ralph Elliot, County At-
torney, Grayson County Texas, for his op-
inion on questions of iaw, and his written
opinion in answer thereto.
“1 am of the opinion that Attorney
General’s Opinion lo. 0-4088 dated Aovem-
her 15, 1941, declared Article 1030e, C.C.P.,
unconstitutional and the payment in question
cannot be made therounder. It also appears
that if Article 1030a, C.C.P., Is unconstl-
tutlonal, there mpy be some question as to
the constitutionality of Section 2, Article
1006, C.C.P.) as that article attempts to do
practically the same thing as Article 103Oa.
“Please let me have your opinion on
these questions.n
The copy of your request addressed to Mr. Elliot,
County Attorney of Grayson County, reads:
“1. Under Section 2, Article 1006, Texas
Code of Criminal Procedure, can the County
Auditor, Grayson County, Texas, legally ap-
prove payment from county funds to reimburse
the Sheriff of said county for actual ex-
penses incurred in travelling from the Texas
Hon. W. 0. Wllllams - Page 2 (V-525)
State line to Springfield, MO., and return,
in returning a prisoner to stand trial in
Grayson County, Texas, on a misdemeanor
charge?
“2. Under the same arti,cle, can the Audi-
tor legally approve payment of such expense
in returning a prisoner to stand trial on a
felony charge?
“3. Before such payment could be made,
would such officer have to be commissioned
under Article 1005, Texas ,Code of Criminal
Procedure?”
That request was answered by Hon. Hal Rawlins,
Assistant County Attorney of Grayson County, from which
we quote with approval as follows8
“All extradition proceedings are had by
virtue of the authority given by the United
States Constitution. Title 18, Section 662,
U.S.C.A ., provides that whenever the execu-
tive authority of any State or Territory de-
mands any person as a fugitive from justice,
of the executive authority of any State or
Territory to which such person has fled
charging the person demanded with having com-
mitted treason, felony, or other crime * * l,
It shall be the duty of the executive author-
ity of the State or Territory to which such .
person has fled to cause him to b&arrested
and secured, and a notice of arrest given to
such executive authority making such demand,
and all costs or expenses shall be paid by
such State making such demand.
“Under this Article, It hdS been held
that extradition.may be had of any person
violating any act known to the laws of the
demanding State, Including a misdemeanor.”
Our statutes, which are pertinent to your in-
quiry, are A)ticles 1005 and 1006, V.C.C.P. They respec-
t lvely read:
Hon. W. 0. Williams - Page 3 (v-525)
Article 1005. When the Governor deems
it proper to demand a person who has commlt-
ted an offense In this State and has fled to
another State or territory, he may commls-
slon any suitable person to take such requl-
sitlon. The accused, If brought back to the
State, shall be delivered up to the sheriff I
of the county In which it is alleged he has
c:mmltted the offense.”
Article 1006. “Sect ion 1, The officer
or person so commissioned shall receive as
compensation the actual and necessary travel-
ing expenses upon requisition of the Govern-
or to be allowed by such Governor and to be
paid out of the State TredSUXy upon a certl-
ficate of the Governor reciting the services
rendered and the allowance therefor.”
“Sect ion 2. The Commissioners’ Court of
the county where an offense~ls committed may
in Its discretion, on the request of the
Sheriff and the recommendation of the District
Attorney, pay the actual and necessary travel-
ing expenses of the officer or person so com-
missioned out of any fund or funds not other-
wise pledged.”
The law is well established that a warrant of
arrest or caplas issued in one state may not be executed
In another state, since such warrant or capias has no va-
lidity beyond the boundarles of the state by whose auth-
ority It wasissued, 4 Am. Jur. 14, Sec. 19; 61 A.L.R.
300. Therefore, If a sheriff or other peace officer of
this State should execute In another state a warrant of
arrest or Capias Issued in this State, such an arrest
would be without authority of law. Rx parte Sykes, 46
Tex. Crlm. Rep. 51, 79 S. W. 538. A sheriff or other
peace officer from one state has no authority to pursue
and recapture In another state a prisoner held under pro-
cess who escaped from custody and fled to such other state.
In short, a sheriff or other peace officer has no jurls-
diction beyond the boundaries of his state, and when he
makes an arrest without his state his position is no bet-
ter or different than that of a private citizen. 47 Am.
Jur. 842, Sec. 29,
Hon. W. 0. Williams - Page 4 (V-525)
There Is great difference between the author-
ity of a sheriff or other peace office to act beyond
the boundaries of his state and the authority of such
officer when duly appointed and commissioned by the Gov-
ernor of his state to act as an agent of the State for
the purpose of returning a fugitive from justice. For
the extradition of fugitivas from justice Is governed by
the Constitution and statutes of the United States. Art.
IV, Sec. 2, Cl, 2; Sess. 662, 663, U.S.C.A. State stat-
utes, such as Articles I.005 and 1006, If consistent with
the constitutional and statutory provisions of the United
States, are enacted merely in aid of interstate rendl-
tion of fugitives from justice. An agent of the state,
when duly appointed and commissioned by the Governor is
protected in the performance of his duty by the prov 1s-
ions of Section 663, U.S.C.A., which reads1
“Any agent so appointed as provided in
Section 662 who receives the fugitive into
his custody shall be empowered to transport
him to the State or Territory from which he
has fled. And every person who, by force,
sets at liberty or rescues the fugitive from
such agent while so transporting him, shall
be fined not more than $500 or Imprisoned
not more than one year.”
Section 1, Article 1.006, provides for the pay-
ment by the State of Texas of the agent’s actual and ne-
cessary traveling expenses Incurred in the performance of
his duties. Such expenses Include those expenses incur-
red both within and without this State, The Legislature
has made an appropriation of $25,000 for each year of the
current biennium for that specific purpose - “Returning
Fugitives from Justice.11
Section 2, Article 1006, authorizes a Commls-
sioners’ Court of the county where an offense is commit-
ted, in its discretion, upon the recommendation of the
District Attorney, to pay the actual and necessary trav-
eling expenses of the sheriff incurred within and without
the State, but only when he has been commissioned by the
Governor an agent of the State in accordance with the pro-
visions of Article 1005.
YOU have su ested that since Attorney Gener-
al’s Oplnlon Nor O&O% held Article 10300 unconstitution-
al there may be some question as to the constitutionality
of Section 2, Article 1006,
Hon. W. 0. Williams - Page 5 (V-525)
In the opinion mentioned, a former Attorney
General held that House Bill No. 411, Acts 47th Legisla-
ture, p. 669, subsequently codified by Vernon as Article
103Oa, was unconstitutional for the reason it contained
a deceptive and misleading title, contrary to the pro-
visions of Section 35, Article III of the Constitution,
We hdve carefully examined the original Act
of 1945 (Acts 49th Leg. p. 451) which added Section 2 to
Article 1006 and have found no constitutional objections
thereto, and none has been called to our attention.
In answer to all of your questions, you are ad-
vised it is our opinion that neither Section 2, Article
1006, nor any other statute, authorizes or permits the
Commissioners’ Court to allow or the County Auditor to
approve for payment any item of expense incunred by a
sheriff beyond the boundaries of this State in going af-
ter and returning a fugitive from justice from this State,
unless he was commissioned by the Governor for that pur-
pose in accordance with the provisions of Article 1005.
The Commissioners’ Court has no authority
under Section 2, Article 1006, V.C.C.P., or any
other statute, to allow, or the County Auditor
to approve for payment, any traveling expenses
whatever incurred by a sheriff beyond the boun-
daries of this State in going after and return-
ing a person charged with the commission of an
offense, whether a felony or misdemeanor, in
this State, unless he was first duly appointed
and commissioned by the Governor as an agent of
the State in accordance with the provisions of
Article 1005, V.C.C.P.
Sours very truly,
APPROVED: ATTORNEY
GENERAL
OF TEXAS
BytkYzy~4
Assistant
. ’
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