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E ET GENERAL
Honorable IL W. Allen
District Attorney
Hamilton, Texas
Dear Sir: Opinion No. O-3010
Re: Sheriff's mileage fee or actual
costs in returning a prieoner under a
felony indictment who has escaped
(under sections 1 and 6 of Article 1030
of Article 1037, C.C.P.)
Your request for the opinion of this department on the questions herein
stated has been received and carefully considered. Ue quote frms your letter as
follows:
"(1) Is a sheriff entitled to compensation under Sec. 1, Art. 1030, C.C.P.,
for mileage traveled in arresting a defendant under a felony indictment who
had previously been in oustody under a Justice Court complaint charging him
with suah felony and escaped from jail while being so held?
"(2) In the event the provisions of Art. 1030, Sec. 1, CCP do not apply to
the foregoing facts,would such officer be entitled to compensation uuder
Sec. 6, Art. 1030 aforesaid as being *service of criminal process not other-
wise provided for.'
"(3) In the event you answer the foregoing questions in the negative, would
the oounty be liable for the actual cost of returning an escspee under Art.
1037, CCP, providing that the county is liable for the cost of *safekeeping*
prisoners?"
A&ole 1030, Code of Criminal Procedure, provides as follows~ Sacs.
1 and 6x
"Section 1. For executing each warrant of arrest or capias, or for making
arrestwithoutwarraut, when authorized by law, the sum of one dollar; and
five cents for each mile actually and necessarily traveled in going to
place of arrest, and for conveying the prisoner or prisonsis to jail,
mileage, as provided for in subdivision 4 shall be allowed; provided, that
in counties that in counties that have a population of less than forty
thousand inhabitants, as shown by the preceding Federal census, the follow-
ing fees shall apply: For executing each warrant of arrest or oapias, or
for making arrest without warrant, nhen authorized by law, three dollars
and fifteen cents for each mile actually and neaessarily traveled in going
to place of arrest, and for conveying prisoners to jail, mileage as provided
for in subdivision 4 shall be allowed: and one dollar shall be allowed for
Honorable H. W. Allen, page 2 (o-3010)
the approval of a bond."
"Sec. 6. To officers for service of criminal prooess not otherwise provided
for, the sum of five cents a mile going and returning, shall bs allowed) pro-
vided, if two or more persons are mentioned in the same or different writs,
the rules prescribed in subdivision 5 shall apply; provided, eat in counties
that have a population of less than forty thousand inhabitants, as shown by
the preceding Federal censuss the following fees shall apply8 To officers for
service of criminal prooess not otherwise provided for, the sum of ten cents
a mile going and returning shell be allowed; p rovided, if two or more persons
are mentioned in the same or different writs, the rule prescribed in subdivi-
sion 5 shall apply."
Vernon's Annotated Code of Criminal Prooedure, Artiele1020, as a-
mended, reads in part as follows:
"Sheriffs and Constables serving process and attending any examining court in
the examination of any felony oase, shall be entitled to suchfees as are fix-
ed by law for similar servioes in misdemeanor eases fn County Court to be paid
by the State, not to exceed Four and Do/l00 (#4.00) Dollars in any one case,
and mileage actually and neoessarily traveled in going to the place of arrest,
and for conveying the prisoner or prisoners to jail as provided in Articles
1029 and 1030, Code of Criminal Procedure, as the Pacts may be, but no mileage
whatever shall be paid for summoning or attaching witnesses in the county
where the case is pending. Provided no sheriff or constable shall receive
from tie State any additional mileage for any subsequent ar-est of a defend-
ant in the ssme case, or in any other case In an examining court or in any
district court based upon the same aher5e or the same criminal act, or grow-
ing out of the same ariminal tranaestion, whether the arrest is made with or
without a warrant, or before or after indictment, and In no event shall he
ne allowed,to dupliaate his fees for mileage for making arrests, with or
without warrant, or when two or more warrants of arrest or capiases are serv-
ed or could have been served on the defendant on any one day,"
Article 233, Code of Criminal Procedure, direats the officer execut-
ing awarrant of arrest to take the person arrested forthwit& before the magis-
trate who issued the warrant, or before the magistrate named in the warrant.
Chapters 3 and 4, Title 5, Code of Criminal Procedure, provide the procedure
to be followed, following the eotion direoted by said Article 253. The magis-
trate shall proceed to hold an examining trial (Article 245) or the aooused
waived the same (Artiole 299). After an examining trial has been held, the
magistrate makes the proper order thereon (Artiole 261)~ if waived, requires
bail (Artiole 299).
From the faots, stated generally In your letter, ws conclude that
the defendant was cornuittedto jail by the "proper orders of the magistrate
under the prooedure referred to in the preceding paragraph, and, while so
held in custody by the sheriff awaiting the action of the grand jury, he
escaped.
Hon. H. W. Allen, page 3 (O&010)
Article 42, Code of Criminal Prooedure, provides es follows:
"Art. 42. V&en e prisoner is committed to jail by warrant from a magistrate or
court, he shell be placed in jail by the sheriff. It is a violation of duty
on the part of any sheriff to permit e defendant so committed to remain out of
jail, except that he may, when a defendant is committed for want of bail, or
when he arrests~in e bailable case, give the person arrested a reasonable time
to procure bail; but, he shall so guard the accused es to prevent escape."
Artiole 265, Code of Criminal Proaedure, provides es follows:
"Art. 265. Every sheriff shall keep safely a person committed to his custody.
He shall use no aruel or unusual means to secure this end, but shall adopt all
necessary measures to prevent the escape of a prisoner. He may summon a guard
of sufficient number, in case it becomes neoessary to prevent an escape from
jail, or the re*Due of a prisoner.R
Article 5116 of the Revised Civil Statutes of 1925 provides as followas
'krt. 5116. Each sheriff is the keeper of the jail of his county. Re shall
.safelykeep therein all prisoners oonnnittedthereto by lawful authority, sub-
ject to the order of the proper court, and shall be responsible for the safe
keeping of such prisoners. The sheriff may appoint a jailer to take charge
of the jail, and supply the wants of those therein confined; but in all oases
the sheriff shall exercise a supervision end control over the jail."
Vernon's Annotated Civil Statutes, Article 6671, as amended in 1939,
provides in part es follows:
"Art. 6871. Rhenever in any county it beoomes neoessary to employ guards for
the safekeeping of &isoners and the security of jails, the Sheriffmay, with
the approval of the Commissioners* Court, or in case of emergency,with the
approval of the County Judge, employ such number of guards as may be neoesseryj
and his accounttherefor, duly itemized and sworn to, shell be alloqed by said
Court, end paid out of the County Treasury. . . ."
From the heretiebove quoted provisions of the Code of Criminal Pro-
cedure and the Revised Civil Statutes, it is readily apparent that the Lo&s-
lature intended that the sheriff be held striotly~aocountable~~for'thesafe
keeping or prisoners legally oonnaittedto his custody. Moreover, the Penal
Code makes e sheriff criminally liable for wilfully permitting an accused or
convicted person to escape (Article 319) end for negligently permitting such
a person to esoape (Article 322).
The re-arresting of a defendant who has esoaped.~from the sheriff's
custody is not the "semice of oriminal process not otherwise provided for"
within Article 1030, Section 6 of the Code of Criminal Procedure, supre.
Such a serpice amounts to nothing more than a "subsequent arrest of a defend-
ant in the *ame case," as provided in Article 1020, Code of Criminal Proced-
ure, supra, for whioh.e sheriff is expressly prohibited frcp receiving addi-
tional mileage.
Hon. HI 17.Allen, pge 4 (O-3010)
It lo Woroforo the opinion of t:iiodrgrrhont that noithor I**-
tiea 1 aor ooctioa 6 of ktlolo 1030, Oodo of Crimiml Prowit;:c, ~i,titl**
#a rhorifT to 00111~08oatloelrorn %o Etrto, for milorgo trovolod ia arroa-
6191; o.dofeadaat odor a fololqy iadiobnaat who had prorl~u~ly kofi in QUD.
tody undor a jurtioo oourt oomplailnt ohar&eg him nlth uuoh felony a&
oroaprd from jailwhllo kiq 10 hold.
Art1010 1087, Oodo of Qrlmiaal Proooduro, prwldor ao follower
“Artr 1087, koh ooung ohall k liable for all lxpoao** inourrod oa a*-
aount of tho oafo korplaE of prl*oa*r* ooafiaod in jail or kept under
guard, l xoopt priroarru brought from mothor oouaty for oafokooping, or on
haboao aorpui or 0haal;oof voaurfi iawhioh oaaon, fho oounty fromwhich tho
priaoaor IO brought *hall bo liable for tho oxpoaor of his safe koopiag.”
Wo klioro that tho liability of tho oounty, under the artlclo '
quoted, is rortriotod to %hooo lxpoaooo iaourrod by the ahoriff in avail-
ing hirmolf of the authority aad poor @WI him to uoo all nooossary mea*-
uroo to provoat tho oooapo of a priooaor (Artiolo 266, C.C.P.), and to em-
ploy guardr for tho oafo keopiag of priroaors whoa aeoroaary (Article 6671,
ao omoadod in 1989, rupra). To aoaotruo Artiolo 1057, Codo of arimiaal
Proooduro, aupra, a* rondoring the county liable to thr sheriff for miloago
traveled la roturnlag UI oooapod prluoaor, would 'betantamount to holding
that tho word6 “liable for all rxpoaoo iaourrod oa account of the *afo
koopiag of prl*oa*r*n moan the *am* an lleblo for all oxpsaeos oa aooouat
of not koopiag primaorr rafoly~
To hold the ohoriff l brolutely ro*poaaiblo for tho mfo kooplag of
priaoaorr in hla ouatody, a* io madr hio duty under the law* of this Btato,
11 a publio polioy arorrrary to tho la fo r o r mo of a tho
t Etato law*. To aid
Go rhrriff ia the praotioal porfommaoo of that oolom duty, ho ha* ‘boon
@voa alnoot unlimited authority to laour lxpoa*oo to hop hio priooaarr
rafoly, If ho fall* to avail hkoolf of thrro moawrm ard tho prlwoaor
rnako*hi* rroapr, tho ohorlff mot aoaumo the r**poaoibillty aad tho oo*to
of hi@ rotura,
It lo aooordia&y %ho furfior oplaloa of bhlr dopartParat that,
uador tho faotr rtatrd, Artlolo 10117, Oodo of Orlmlaal Proooduro, doou not
roador tho oounty llablo for tho aotual oo#tr of returning the laoapod prim-
oaw, rlaooruoh oortr are not a part of Wo woxpoarr lnourrod on aooount of
tho raf* kerplag of prlooarrrn ooatorqplatod by *aid rtatutoe
You are thoroforo ro;pootfully advlood that luoh of the throo
quortlonr rubnlttod should bo anmorod in the nogutivoe
PIPIT(llOgW Vary truly yourr
PRovao bull la, 1941
7 o/ Porrld 0. Mann AT,TTORNlY
QBNIE#btOF T8iltA6
ATTOWN QIDllBRUOF Tlpxld
Q /N/ Wp;rr Phil
Bklgar Pfoll
AaDiOttmt