Untitled Texas Attorney General Opinion

. . , 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