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765
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
-CS-
--
Honorable H. A. Hodges
County Auditor
Williamson County
Georgetown, Texae
Dear Sir:
questing the opinion
are herein stated has
ocedure here in regard
a in felony 08888 I
on 80 you may fuliy
sted for robbing a store,
ere and the prieonera oom-
heriff and placed in jail to await
they were later
'i'he sheriff allowed
o convey them to Granger for an
there for robbery, they waived the
and were brought back and delivered
to the aheriii and placed in jail; then grand jury
also indioted them on the Grsnger Bases.
The offlcere in thle preoinct ht!d made the
first arreat and filed their olaim for the tees
and o;lleage allowed In Pelony cases, now the oon-
stable in the Granger precinot files his olaim for
fees and the mileage in felony arrest.s, whiah ii
Honorable H. A. Hodges, Page 2
allowed is double milea&e for felony arrests.
The defendants being In charge of the Sheriff
(Court) I do not think there is any mileage due
the aonstable, also that the waiving of the rights
to an examining trial should have been given to
..them while In jail by the justioe of the peaoe of
the Grenger preo inot.
"Under the above fasts I submit the following
questIonS:
*l. After a felon is plaoed in jail in
charge of the sheriff does he, the sheriff', have
authority to allow the oonsteble, or any other
offiaer, to have charge of the prisoner before
he haa been tried on the a.hargea for whioh he was
first pleoed in jail?
"2. If the sheriff is allowed, under the law,
to turn the prisoner over to another offioer for
examining trials what mileage, if any, is the offi-
cer allowed for conveying the prisoner (felony) to
the court for trial and what mileage for returning
to jail?
"I.am of the opinion that all mileage oherges
cease after a prisoner has been committed to jail
and an examining trial has been held, a8 I see it
he is in the custody of the oourt and the officers
ere not allowed any adUitione1 mileage."
Artiole 1020, Code of Criminal Prooedure, reads in
part as follows:
"Sheriffs and Constables serving prooess and
attending any examining Oourt in the examination
0r any felony case, shall be entitled to such fees
OS are fixed by law for similar services in mis-
demeanor case in County Court to be paid by the
State, not to exoeed Four and No/100 ($4.00) Dol-
lars in any one case, and mileage aatually and
necessarily traveled in going to the place of ar-
rest, and for conveying the prisoner or prisoners
to jail as provided In Artioles 1029 and 1930, Code
of Criminal Froaedure, a8 the faots may be, but no
767
Honorable H. A. Hodges, Page 3
mileage whatever shall be paid for summoning or
attaohlng witnesses in the county where 0888 is
pending. Provided no sheriff or constable shell
reoefve from the State any additional mileage
for any subsequent arrest of a defendant in the
mine cane, or in any other oase in an examining
court or in any distriot oourt based. upon the same
charge or upon the same ariminel aat, or growing
out of the same oriminal transeotlon, whether the
arrest is made with or without a warrant, or be-
fore or after lndlotnent, and In no event shall
he be allowed to dupafdate his fees for nlleage
for making arrests,,,,~wlth or without warrant, or
when two or more warrants of qrrest or oepleses
are served or oould have been served on the same
defendant on any one day.”
The fourth paragraph of said Artiole 1020, supra,
as amended, provides when the fsea~ provided for shell be
beooms due and payable. Xe quote the pertinent language
as follows:
*The fees mentioned in this Artials shall
beoome due and payable only after the indictment
of the defendant for an offense based upon or
growing out of the charge filed in the examining
aoUrt and upon an itemized aocount, sworn to by
the offioers olaimlng such fees, approved by the
judge of the Gistriot Court,....”
Artiole 233, Code of Criminal Prooedure, directs the
officer exeouting a warrant of arrest to take the person
arrested forthwith before the magistrate who Issued the war-
rant, or before the uegistrete named in the warrant. Chapters
3 and 4, Title 5, Code. of Criminal Prooedure, proviles the
prooedure to be followed, following the aotion directed by
seld Artlole 233. The ma letrate shall proceed to hold an
examining trial (Art. 245 7 or the accused Waive6 same (&%.
299). If an examining trial is held after having the evideno6
the magistrate makes the proper order thereon (Art. 261)~
if waived, requires bell (Art. 299). He is required to
aertify the prooeedlngs to the olerk of the proper court.
This department has heretofore ruled that officers
are entitled to their statutory fees for SerViOeS aotuelly per-
formed, even though the defendant waives the examining trial.
(Letter opinion, Hon. Everett S. Johnson to Hon. Homer C,
DeWolfe, February 27, 1931, Vol. 319, page 190) Hon. Paul D.
Page, Jr. to Hon. L. Pherr, November 21, 1929, Vol. 308, p. 96;
7ti8
Honorable H. k. Rodges, Page 4
Hon. Eruce Bryant to Hon. Geo. 11. Shgppard, September 9, 1932,
Vol. 338, p. 575)
County officials of Pillliemson are compensated on
an annual salary basis end the precinat officers are oompen-
sated on a fee basis, Seation 17b, Artiole 3912e, provldes
In part:
*In oounties wherein the oounty officers nsmed
in this Act are compensated on the basis of an annual
salary, the State of Texas shall not be charged with
and shell not pay any fee or commission to any pre-
olnat officer for any services by him performed, but
said offioer shall be paid by the County out of the
Offioera' Salary Fund such fees and oommissions es
would otherwise be paid him by the State for ouoh
servioes.w
This statute oontrols over the language "to be paid
by the State" es used in Article 1020, supre. This has been
decided by several letter opinions of this department, to which
we adhere. (Letter opinionMmHon. Joe J. Alsup to 1's. R, L.
Armstrong, Perch 31, 1937,~ Vol. 376., p. 834; Hon. 11. 1. :^iilliford
to Ron. Cuinoey Hawkins, June 24, 1938, Vol. 382, p, 151, and
Opinions Ros. O-704, and O-1002)
Under the facts stated in your inquiry, two s8n were
arrested for robbin- a store in Yllliamson County end en examin-
ing trial was held end the prisoners oomszitted to the sheriff
and pleoed In jail end they were afterwards indicted by the
grand jury. Khile they were in jail, after being lndioted by
the grand jury, they were charged with the off8nse of robbery
at &anger, a town in ~:llliemson County, end the sheriff. per-
mltted the constable to carry the prisoners to LaGrange for an
examining trial, which the defendants waived, As we understand
the feats, the two men were charged with the offense of robbery
in two separate end dlstlnot oases end en examining trial was
held in one end the examining trail was waived by the defen-
dents in the other case.
Ordinarily, the sheriff&is the custodian of prisoners
confined in the county jail and Is responsible for their safe
keeping. It is his duty to hold them until a disohsrge is
lawfully ordered unless they have furnished a bell bond es re-
quired by law. Rowever, there is no legel inhibition against
the sheriff allowing the constable or any other offic~who is
769
Honorable H. A. HoQge*, Page 8
authorized by law to hare charge 0t a prieoner for purpose
ot appearing in examining oourts or to ansner argee
in criminal ca6es, although the caee for whloh the aif
originally held the prieoners har ,&dt been tried or %N
: posed
or.
In answer to your aeoond questlon,ikou are rrrpeot-
fully advised that under Artlole 1080, supra, rharifre and
oonetabler serving any proaeea and attending any examining
court in the examination of any felony oaee shall be entitled
to suoh fee8 a8 are fixed by law for similar sbrvlors in mls-
demeanor oae6e In oountp oourts, not to exoeed .$$.OO in any
one oaae, and ~~lleagoaotually and nsoeesarlly traveled In
going to the place of arrert and for conveying the prisoner
or prironers to jail a8 provided in Artlole 1080 and ~Uole
1030, code of Criminal Pmedure,as the fact6 niay be. Under
the partiaular fact8 iit this spsoiiio oaam, we are or the
opinion that the oonatable Is not only entitle6 to his fees
but to mileage aotually and nweasarily traveled ln oonveying
the prisoners iron the jail to the examinfn& aourt and frcun
the examining oourt to jail aa provided in Artlols 1029,, Code
or Criminal F$ooedure, aa the opulatlon 0r ~illlamson County
Is over Fort* Thousand (40,000 T Waabitants.
Trusting that, the foregoing f’ully amwers your .in-
qulry, we are
Very truly yours
ATTORNEYOEmRAL af lTbxA3
Ardsll Willlama
Asalstant
n APPROVED
OPlNlON
COMMllTEL