OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Konorable Gsorgs H. Sheppard
Comptroller of Pub110 Aoaounte
Austin, Texas
Dear Sir;
ould
and
eriif
re-
010
Your letter requesting an opln-
ion OS this depart3
. His 0888
released :tram
e -date was
aorumotion with the re-
and his habeas oorpua prooead-
in a letter addressed to thin
6 by San Uleveland, Distrlot
AVilb, Tsxacas, rhioh letter Is
ohn Ednaadson, Sheriff of Palo Pinto
Oounty, presented hle olaim ror mileage in retnm-
Rayburn from Harris County to Palo Pinto County
th
‘Y a department refused payaent of aafao on the
ground that ths bondsmen wers liable for thst fss.
Hr. Cleveland alaim that thla department is In
error in that partioular and alaim that the bondd-
men were dlsoharged when R@NWA was arreeted in
fiarri 8 County,
Honorable George R. Sheppard, Page 2
“I will thank you to advise whether or not
the Stat. should pay the mileage and sxponae ao-
oouut OS the Sherifr or Palo Pinto County ror re-
turning faok Rayburn to Palo Pinto County under
the faota stated in this letter and ths attached
letter from the Distriot Attorney at Stephenvillo,
Texan.”
The letter of the Distrfot Attorney of 3tephentillo,
addreesbd to your department and referred to in your request,
after omitting the argumentative portion, reada as followe!
7011 have reoeatly had for oontdderation the
aooount of the sheriff of Palo Pinto County in
whioh a afd aooount them war an itea relative to
wnreylng Jaok Rayburn from Harris County to Palo
Pint.0 county.
&burn was indioted in 1932, oonvioted ln
1937, his ease was appealed and thereafter af-
flrmedl and upon the mandate being r&mmed by
the Court. of Criminal Appeals he waia subjeot to
arrest and delivery ta the penitentiary author-
ities. l . .
“Rayburn uas resently looated in Earrlr County,
end was arrested upon the not ioe whloh had been
plaoed in the hands of all ofiioers early in 1938
after his ease was afftirmed, After his reoent ar-
rest he waa oonflned in jail in Harris County, the
prison authorities were notified, and they were
ready and willlng to piok him up iA Harris County
and oonvep him to the prleon at Riuntsville. . . 4
‘0~ the other hand Rayburn at this stage, had
the right to have his 088% reviewed oa his appli-
oation for a writ of habeas oorpue, whioh he filed
in Efarrin COMty. l . l
-Upon the ifling of his # cation in Barris
County the WUWJ wae heard by t 8w:t who deter-
Pined that Surisdiotlon was la 0 Pinto count
itf$$#g&th” oasg transferred there. for fi Aai
. . .
359
Honorable George R. Sheppard, m* 3
The sort ulain(( oat of t&e retural~ of Jaok Ray-
burn to Palo PiAt0 Ooplrty imr Harris CountJ was due to the
faot that the eaid Raybura had filed his applloation for a s
writ of habeas oorpue in Earrle Uouat;l led t& OIPSS was
transferred to Palo Pinto Oouaty. El8 ruaoval w&e IndopeAd-
Mt and had AO oonneotion whatsoever with the main oaee uAdar
whioh he was eonrioted or with the mAdate of the Court of
Criminal Appeals, but his treaefer arose eolely out of t&e
habeas oorpw proceeding.
Artlole 1W Oode of OrImiAal Proooduro, Ohapber 7,
Title 3, reads as f&u81
9lha the return of the uril, hne boa mde
and the applioaat brought before the oourt, he 1s
no longer dotaflwd oa the original rimrant or pro-
8888, bat under the rtlthorlty o? the ktabew 6orpw.
The lafekeep of the prisoner, pendl~ the emsi-
Antion or hea2 ne is entirely tmder the direotioa
and authority of the judge or oourt leanly the
writ, or to whloh thr return is mado. Ho nay be
bailed from dey to day, or bo nntandod Co t&o same
jail whence he oam, or to Amy other plae8 of lafe
keeping under the oontrol of the JW4ge or eorut,
till the eaee is fixmlly determined.”
A habeas oorpue prooeeding Is a prooeedlAg tbt 18
IndepertdeAt o? the originll oauee and the ooete a?181
lnourring out or euoh a preoeedlag ehould not be oonri “g ered
Or
as oorte of the rain oarsa Thi8 olnt is browht out in the
oa6e of YoCoraiok t. Sheppard, 1 28 Tex. 29, b6 S. I. (24) Uj,
in whioh t&o oerrt stated as follower
A writ or habeas oorpw lies when a
pereo~~i~ ~etralaed ef his liberty reg6rdleer of
the offense oharged. A Jmbeae oorpue proeeadiag
I8 Independent or thr offsA oharged, . . , we
think that prooeediaga for write of habeae oorpw
are to be regarded a8 IA a epeoial 0111811, and the
ooete lnoldent thereto ale not to be rogarded as
ooate in the maln ease. mo date r0r various rea-
eons 18 peouliarlr 1ntereated in proteotfag the
liberty of the individual. In muq inetanoee the
leeuanoe of the writ 18 oaloulated to lvllen the
6tate or ooonty fro8 large rxpmm*. There ir theta-
fore ample ooaslderatlon to authorlse the payment
or the fee by the state, . . .”
Slaae the offiooro of Pale PInto Uouatr aro 00~
Pellootod on R fee baolo, otld tho eount~ havlly o popalatloa
of 18 458 aooording to the lad 0OnOUO, Arti low, Cod0
or Or Linti Proo8dar0, Chaptor 2, Title 15, 10 the proper
artfolo to aonoldorin dotormin.lkq tha roei 0r its ohorirf
and aonotable. This artiole, in part, protldoo:
”. . . .
% ?or attod a prleoaer on habeas eorpuo,
for eaoh day four together with mIloa&o
as provided in oubdl+loloa3, uWm ram7 ouah
plooner out or tho oorutty OBdor an ord*r 7 osued
by a dlotrlat or rppellatr judge.*
8Pbdltiolon 5 roforrad Co ln Seatioa 8 oi MI-
ale 1030, oapra, roads in part am tollowor
. protldod, that La oountiro that km a
pOpUlOk~O'Oi 1000 thu forty thOUOalid inhobitanto,
as ahowa by the preobdiryl Podaral oanouo, the rol-
lowing roe0 shall apply8 For raoh Irile thm 0rri0er
may be oompellod to travel in lr eeuting arlainal
pmoeoo, owaonlq or attaahlng wltaeeoeso, ton
aento~ provided,that ia no aaoe oh0l1 h0 be al-
lowed to doplloatr his raileage whan.two or mom
witn00000 ar0 named in the oa58 or dirrermi writs
in any 0880 emd ho oh0l1 lorvo proaoso 08 thOm in
the same tlolnltg or neighborhood, duriql6 %a ~saao
trip, ho shall not ohargo a&lea60 for soning oaoh
witness to ad tror th0 oouaty Oeat, but shall
oalr ohargs one aileago, and ror suah additioml
miles oalr as aro aotuallJ and noa~osarll~ tra+c4ad
In ounaanlng or attaching eaoh additional wltneeo.
Whan prooeos lo sent by mall to any offloor away
tror the oountr seat or returned br mail br suoh
orricer, he ohall only bo allmod to ohargolairoa6.
ror the miloo aatually traveled by hti In rxaoutlng
0~0h pr0000o, atid th0 roturn 0r th0 0rri00r ohall
show the ohamotor of the oaniee and the tiles
aotuo.llT tnralbd ln laoordaaao with this oubdiri-
olon; and his looeunto shall show the iaato.’
When th0 oOU?t Oi &rriO OOUfbtJtrUOfOrd the
oaoe to Palo Pinto County, it bweur the Oourt’o duty to
363.
Honorable George H. Sheppard, Paso 5
deliver thadoreadeat to the sheriff or that oogitl, The
lhmrifi of Palo Pinto Oountr nent to Harris Count7 took Jaok
Rayburn into auotody and transported him to Polo P&o County.
It is thorstore the opinion or this department that
thn lherlfi or Pclo Pinto County, tier the raoto stated, lo
mtitled to ree0 rmm the state ror his aeniooo in rrtwning
Jaok Rarbburn from Rarrio County to Palo Pinto County as pro-
vlded IE Artiale 1030, oupr8,
Yours tery truly