Hon. George H. Sheppard Opinion No. O-4088
Cg;EW&,ler of Public Re: Are the fees provided for
under H.B. 411, 47th Leg., a
Austin, Texas proper charge against the appro-
priation for the Govfrnor’s Law
Enforcement Fund where the sher-
iff travels to a point outside
the State of Texas and obtains
and returns’ a prisoner to his
county with or without requisi-
Dear Sir: tion by the Governor?
In your letter of October 1, 1941, requesting an opin-
ion of this department, you state that you have a claim by the
Sheriff of Oeona, Texas, for mileage, per diem, etc., for re-
turning a prisoner from Silver City, New Mexico, incurred in
traveling from the State line to Silver City, New Mexico, and
returning thereto. You further state that the Sheriff traveled
without requisition, presumably ‘on waiver, and desire this de-
partment to answer the following question:
When a Sheriff travels to a point outside
the State of Texas and obtains and veturns a pris-
oner to his county, with or without requisition by
the governor, are the fees provided for under House
Bill 411 a proper char.ge against the appropriation
for the Governor t s Law Enforcement Fund?”
Our attention is called to House Bill No. 411, Acts
of the Regular Session of the 47th Legislature, which recent
enactment raises your question.
In order to answer the above question is it necessary
that we examine the provisions of House Bill No. 411, 47th Le is-
lature, which Act makes no reference to Articles 1005 and 100 8
of Vernon’s Code of Criminal Procedure providing a method by
which an officer or person is authorized to go outside the boun-
daries of the State in securing and#returning fugrtives from
justice, with the latter Article authorizing th= officer or per-
son so commissioned by the Governor to receive as compensation
the actual and necessary traveling expenses. These statutes were
involved in the case of Brightman, Sheriff, v. Sheppard, Comptrol-
ler (Corn.4pp., Section B) 59 S.W.(2d) 112. .Referring to Article
1006, the court there held that this statute has reference to the
entire services of the agent in performing the delegated task,
consequently denied a sheriff compensation for mileage under
Hon. George H. Sheppard, page 2 (O-4088)
Article 1030, Code of Criminal Procedure, for his services in
going to the State line and returning therefrom with a fugitive
from justice. The Brightman case is fully discussed in our
Opinion No. 0-1016, addressed to you and approved July 6, 1939,
it being pointed out therein that although Article 1006 has been
amended since the case was decided the rule.announced by the
court was not affected by the amendment.
It appears that the Legislature for the biennium end-
ing August 31, 1943, made an appropriation to the Executive De-
partment for “payment of rewards and other expenses necessary
for law enforcement” and “expenses for returning fugitives from
justice;” and it is this appropriation to which you refer in
-your request as the Wovernor’s Law Enforcement Fund.”
House Bill No. 411, h7th Legislature, does not seek to
amend the foregoing statutes. By Section 7 thereof, the Legis-
lature has expressed its intention that this law Is cumulative
of all other statutes on the subject,
It will be noted that the title to House Bill.No. 411,
in part, recites:
“4n Act providing that any sheriff or deputy
sheriff rho in the fulfillment of th duti s of u
gffice leaves the counfg in which heeholdseoffice to
secure and return a prisoner indicted for a criminal
offe,nse of the grade of a felony shall be entitled
to receive five cents (595) per mile for transporta-
tion, and that the distance traveled shall be the
shortese practicable route between points; provided
further that such sheriff or deputy sheriff shall
receive a per diem sum not. to exceed Five Dollars
($5) per day for meals and lodging; . . .I(
Section 1 of theBill reads:
“&very sheriff, or deputy sheriff, in any county
of this State, who shall hereafter arrest, or cause
to be arrested, any person, or persons ‘indict ad for a
criminal offense of the grade of a felony, in the
county where such officer is the duly acting sheriff,
or deputy sheriff, shall be paid the sum of five cents
(se) per mile from the state line and return thereto,
gl one. the nearest cracticable r ute. to the ooint
*
3b C ers r wil
plaied under arrest, and in addition thereto, suei of-
ficer, or officers, shall be paid, not to exceed Five
Dollars ($5) per day, per person, for hotel bills,
Hon. George A. Sheppard, page 3 (O-4088)
meals and other expenses necessarily contracted
in the performance of such official duty.”
(Underscoring ours)
‘Section 2 of the Act directs the Comptroller of Public
Accounts to pay out ~of any fund or funds provided for such pur-
pose, such expense upon approval of the account by the District
Judge, etc.. Section 3 authorizes the commissioners1 court to
pay the account ins the event there are ,no funds available belong-
ing: to the State. Section 4. appears to cover substantially the
same matter as Section 3 except applicable to fee counties.
There are additional sections to the Act not necessary to mention.
As we construe House Bill No. 411, particularly SPctinn
1. ,it provides solely for the payment of the five cents (5Q) per
mi le traveling and other expeases necessarily contracted and in-
curred outside the boundaries of the State of Texas. While the
Act‘.characterizes this expense to be’ paid as contracted in the
perf brmanc f uch official duty~, the %ot does not ‘expressly or
by implica~i& iuthorize the sheriff or deputy sheriff to go out-
side the boundary of the State in the performance of his official
,duty normake it his, duty to do so. It plainly attempts to
recognize his going without reference to Articles 1005 and 1006
of the Code of Criminal Procedure, as an official dutv.
We’are not here’concerned with the question of whether
or not~.the Legislature may authorize such traveling outside the
State ~as.a part of,;the sheriff’s off’icial duties. The fact re-
mains that; the. law, presently written,, does not do so. This de-
partment held in our Opinion No,. o-1590, rendered to Honorable Tom
iovE;;;h3 County, ‘%dit or., McLennan County, Texas, and approved
, 1939,. that a sheriff would not have authority to go
beyond the border of. this State and return a prisoner without
first obtaining requisition as provided in kticles 1005 and
1006, Vernon’s Annotated Code of Criminal Procedure.
‘The fact that kicles ,1005,‘and i006 of the Code pro-
vides~ the, method and compensation for such services in going af-
ter and ,returning. a ,fugitive, from justice, such constitutes a
legislative ,recognition of long standing against such authority,
as attempted ‘to be recagnized inHouse Bill No. 411, of t,he sher-
iff acting in his official cap~acity or performing official du-
ties outside the ~boundaries of the State. It. has been stated
that when the law confers upon a person powers; that .he, as a na-
tural person, does not posse~ss, that power cannot accompany his
person b~eyond the boundaries of the sovereignty which has confer-
red the power’ and’although ‘the’ Legislature may require or author-
ize.certain official acts to be ~done~beyon~d the State’s limits,
: such acts’are done~by express authority or permission, and the
power to perform them outside the territorial jurisdiction of the
Hon. George H. Sheppard, page 4 (O-4088)
State is not to be implied. Meohem, Public Officers, p. 332;
46 C.J. p. 1032.
The title of the Act in questioa gives no notice
whatever of any service or traveling expense payable for service
rendered outside the State’s boundaries to which the provisions
in the body of the Act relate. On the contrary, it gives ‘notice
that such expense is allowed and shall be paid to one, who at
the time, is engaged “in the fulfillment of the duties of his
office.”
Section 35, Article III, Constitution of Texas, reads:
“No bill, . . . shall contain more than one sub-
ject, which shall be expressed in its title. But if
any subject shall be embraced in an act, which shall
not be expressed in the title, such act shall be void
.only as to so much thereof, as shall not be so ex-
pressed.”
We quote from 39 Texas Jurisprudence, page 100, as fol-
lows:
wðer a title is comprehensive or restrictive,
expressed in general terms or particularity, it must
be in agreement and, conformity, and not at variance
with the subject of the legislation. . . A title is
deceptive, false or misleading if it disguises the
true purpose of the act end imports a subject differ-
ent from that to which the act relates. And whether
or not a title states,the general purpose of the act,
it is misleading if it states specifia purposes in
such manner as to conceal other purposes not stated,”
The subject of House Bill No. 411 is plainly at vari-
ance with and conflicts with its title. Not only that, but ‘we
think it plainly disguises and conceals the true purpose of the
Act, is deceptive and misleading and in plain violation of the
above constitutional provision. Bitter v. Bexas County, 11
S.W.(2d) 163 (Com.App.) reversing 266 S.W. 224; Sutherland v.
Board of Trustees, 261 S.W. 489, error refused; Ward Cattle &
k&r; Co.8v. Carpenter, 109 Tex. 103, 200 S.W. 521, affirming
. . .
In view of the foregoing, it is the opinion of this
Department that House Bill No. 411, Acts of the 47th Legislature,
Regular Session, is unconstitutional and void, in violation of
Section 35 of Article III of theConstitution of Texas, hence,
Hon. George H. Sheppard, page 5 (O-4088)
the fees and charges mentioned therein are not payable from
any fund.
Yours very truly
ATTORNEY
GENERAL.
OF TEXAS
By /s/ Wm. J. R. King
Wm. J. R. King, Assistant
APPROVED NOV 15, 1941
/s/ Grover Sellers
FIRST ASSISTANTATTORNEY
GENERAL
APPROVED:
W&NIO~NCO~!TTEE
BY:. *
WMK:L&l:wb