253
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
aonorabls 1. I;.MaClaln
31striot Attorney
Gaorgatoun; Texa8
Dear Slfr
Your letter requrrtlng ee opini
matter ir l8 fO11OW8r
present when the OS88
ante& thst LO be tt.iad
p8 or t&o Cede ot
ld eoontro1. sh8t
254
tIo5orable W. Ii. Moclain, pw 2
Vurstatute directs that the Sheriff shall _
sreoute the same; and not some other peaoe oiflosr
or city marshal. I thererore'doubt ii we 0fm read
into the statute the word constable or *other:$oaoe
orri0e as contended by f&r. Kodges. Pleas&'sdvise
U8 On the above question, and I will appreoiate the
IlamB.”
Article 4-41,V. A. C. C. P., d&in88 a 08pAa8 88 *a writ
Issued by the oourt or olerk, and directed *To any Sheriff or
the State or Texasr oommandlng him to arrest a person aooueed
or an orr0n.90and bring him berore that court forthwith, or on
a day or at a term etated In the writ.*
Article 453, V. A. C. C. P., state8 that a oapias map be
exeoated by any oonstable or other peace offioer. Artlob 36,
V. A. C. C. P., states that city marshal8 are pa08 orricers.
Article 918, V. A. C. C. P., whloh 18 found in Title 11
concerning prooedure In the juatlos and oorporatlon courts,
8t8tBs, "Ii the defendant be not in OU8tOdy when Judgment i8
rendered, or ii he esoapes mm oustody,thersert.er,a oaplae
shall fsaue r0f hi8 arrest and oonri’n6mentin jail until he
is legally dlsoharged.*
In the ease or Er parte Fernandez, 57,s. W. (2d) 576,
the Court oi Criminal Appeals held that Itrtiole920, C. C. P.,
applied to a oa6e of oonviotion in the justloe gourt rather
than Article 793, V. A. c. c, P., ror the reason that Article
920 had reference to judgments or conviotlon in oriminal ao-
tions before a justloe oi the eaoe while Article 793 had
referenoe to judgments 0r convf otion in orimlnal aotions in
oourta of higher jurisdiotion. The oourt used the following
language, on page 579:
'The chapter in which artiole 920, eupm,
appears ia one having rehavmoo to a judgment
0r oonviotion in a oriminal action belore a
justloe 0r the peaoe, From what has been said
it Is apparent that the statutory enaOtment8
make a dletinotion on the aubdeot in hand with
rerersnoe to the oonvlotion of a mirdrmeanor
before the justioe of the peaoe and the oon-
viotion of a misdemeanor in oourtr of higher
jurisdiation. . .*
.
255
‘donorableW. IS.XoClaln, page 3
Polloulng the reasoning of the above quoted 08188,it fr
.our opinion that Article 913, siupra,would apply to a Oapias
Issued by the juetloe court rather than Artiols 788, V.A.C.C.P.
A oaplaa pro rine has been derined aa a writ r -.I ing In
behalr and ror the benefit 0r a goverzzental agenod””
, *to2
oolleotion or tine and mean8 literally, you take,,fortho fine."
See Word8 and Phraemt!,Vol. 6, page 60. Thersfom, a oapiaa
pro ri56 ir in reality a special type or warrant or arrest.
One or the requieltes ror a warrant ireued by the juetioe
of the peaoe a8 eet out by Artiole 885, V. A. c. C. P., Is that,
*It 8hall be dir‘eotsd to the proper rherlif, oonstabla or fmme
other person name4 therein.* Therefore, it 18 Our opinfoh that
the jud.loe of the peaoe may, ii 8% desirer to do so, lesue the
aapIa@ pro fine In the name or EthelState of Texaae, and dlreot
it to the elty marehal.
Xi the $l8tiOe Oi the aoe dirootr the oa iae to the oity
-mares 5" would be authorizei to 8OXVO it.
rugh otty nkarsha
Ho~~ver,~the’juidioe of the peaoe ia dot required to dixeot the
aapiar to the oity marshal ii he doe8 not iaeelit to do 80, but
he may direct the oaplar to "the proper sherifi, o0Sl8tablO or
,aome other person named therein * as provided by Utiole 885,
rupra ,
Your8 very truly,
A!FJ!ORNiCY Gi3lWAL OF ‘l’%xAs
I J-R:ddt:JJ
Untitled Texas Attorney General Opinion
Combined Opinion