Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEYGENERAL OF TEXAS
AUSTIN
rebruaq 13, 1939
Honorable Qeo.
Cemptrolltr o?
Awtin, Texas
Dear sir: Opinion 130. O-S!12
Under hate or Janu reqie8t tie opinion
or thin Dopartrent a* to whe bill or Dre. Wooten
& Qodaara, la the amount allration ana 8eai-
oner, ir a legal
Exeoutire Department
n a quertlon 0r faot, we
quote rr0m a letter D~ireotor of the Depart-
ment of Public Bare
private oitiren
ze a plaee in Havar-
nted on habitual orisltial in-
ounty ma had not been in-
Oountr when the Texas Highway
eb te transport him to Wllu
n habitual orlmlnal lnrlictmentm
was in good oonaition ana wa8 able to be roved. Be-
rore ‘reaching Mllam County, Watkinr’ oondltion be-
oame orltioal ana Hflam County luthorltfee had lo
place where a prlaoner in auoh a @xxlltlOn oould be
properly sareguaraea. 80 it beoame neoeaeary ror
the Patrol to plaoe this man in seton Infirmary,
Austin, Texa6, anb to provide a guard for him until
_.
. .
Honorable @so. H. gheappard, February 16, 1839, Page 2
euoh tine aa his oonaItLon would permit hla to
be removed to the texae 3tate Penitentiary Hoe-
pita1 at Eunterille, Texas. Thie department
oould not let the man die for laok of mealoal
attentlon that the law of humanity aemanae be
loooraea even to notorloue publle enemler.’
At the time the locount In queetion wan lnourred ror
hoepItalIzatIon and medical Ieee to cave the life of Jack watklne,
we 6hall aseume, ror the purpoee of thie oplnlon, that the raid
Watkins was properly under arreet, a6 a prleoner, and war being
traneportea from lavarro County to Wllam County by the Texan Hlgh-
way Patrol, to be tried on habitual orlmlnal IndIotmente pending
In the latter oounty. Member8 of the Texas Highway Patrol are
Iren euoh authorlt under Article 4413 (1.21, subdivIsion (41,
f ernon’e Annotated EIv11 Btatutes, whioh provides, In part, ae
r0n0w6 :
‘In addition they rhall be, and they are
hereby clothed with all the powers and authorl-
ty whloh Is In this Aot or otherwlee by law given
to member6 of the Texan Ranger toroe.’
To etermlne the extent of such authority, we refer to
Artiole 4413 ? Xl), 6ubaIrlsIon (41, Vernon’6 Annotated CIrIl Stat-
utee, whioh aonfere upon Texas Rangers the following right6 anti
dutler In oonneotlon with the execution of crlalnal process:
‘The otfloere #hall be olothea with all
the powers of peace orflcers, and ehall ala In
the exeautlon of the lawn.
“They rhall have authority to make lrremte,
ana to execute process In criminal oaeem; and In
clrll oaeea when epeolally directed by the judge
of a court of reoorb; and In all aaaea hall be
governed by the law6 regulating and defining the
power6 and duties of sheriffs when In the din-
charge of’elmllar butlea; except that they rhall
have the power and shall be authorlzed to make
arrests and to execute all rooeee In orlmlnal
Oases In any oounty In the g tats. All orrIcer
operating by virtue of thlr Act #hall hare the
authority to make arrerts, a6 dIrected by war-
rants, an8 without a warrant under the oondl-
tlone now authorized by law, ana alro In all
oaaea when the alleged offender 18 traveling on
a railroad, In a motor vehiole, aeroplane or boat.
when any of #ala force shall arrest any person
ohargea with a orimlnal offense, they #hall forth-
with convey aala person to the county where he 60
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a.e
bnorable Qeo. H. Sheppard, February 15, 1939, ?age 3
stands dhargea, and shall deliver him to the
proper offloer, ,taklng hi6 reoelpt thereror,
All neoeeear expenses thue Incurred shall be
paid by the istate.”
Normover, we point to Artlale 36, 006s or Ctiminal Pro-
oedure, which Inoludee the Texas ganger ioroe within the deflnl-
tlon a nd loope of the term “peaoe offIoereg.
Coneequeatly, from the roregolng l tatutee, It Is eetab-
llehea that the powera and duties or the membera OS the Texas
Highway Patrol, In oonneotlon with the exeoutlon of orImInal pro-
oeee, ana the Ouetoay and safe-keeping of prleonere thereunder,
will be the same ae the power6 ma dutleo oonferrea upon l herIrre,
and otiier peaoi oltloere, under governing statute6 and the decIeIone.
St 16 the well letabliehed general rule that the duty a
oherlrf or other peaoe offioer owee to the state or to the public
‘to eafe;y keep a prisoner oommltted to him ouetoay and deliver him
over to the proper authorities at the proper time, Is no more oom-
puleory than Ir the duty he owes the prisoner hlm~elf to exerolee
reasonable and o+Iqary oare to proteot hle life and health. There
two dutler are so-extensive and arise by virtue of the egeppLor
euoh prisoner by much offloer under orlmlnal prooeee.
;ir311;; ``eone and PrIeonere, 3.0. 10). Logan vs. U.S., i4i- iris.
Qt. 617 36 L. Ed. 429; Ex Parte Jenkins, 68 N.E.360;
BtaCe vs. 8.obln, 04 b ea. 40.
*
Under the fact6 outlined In your letter It Is our opinion
that eaoh of there two oo-existing duties require& that the orfloere
who had Jaok watklne In ouetody red to It that neoeesary ana proper
ledloal attention and hoepltalItatIon be promptly afroraed much
prisoner. *a rrgardn the duty of much offloere to the state, or to
the publlo, in the safe delivery of the prisoner over to the authorl-
ties of Ullam County ior trial on penalng IndIotmente, the furnIehIng
of euoh lealoal oare and hoepItalleatlon am wae neoeesary to preeerve
the life of this prisoner was olrarly In line with much duty. Raa a
rescue or delivery of the prleoner been attempted while he wa8 being
transported In the ouetody or there offioerr, or had a mob attempted
to take the prisoner*6 life or do him bodily Injury, It would have
been the olear duty of euoh offloere to inour any expense neoeseary
to retain ouetoay 0r him, and to save pir lire, In order that he
might be delivered over for trial. B&the same token, a duty rented
upon the offloere ln the Inrtant oaee ..to preserve the lire of the
prisoner rrom the Illness whloh threatened It In order that he might
be brought to trial In *Ilam county ror an offense agalnet eo(lety.
But oonrlderlng this question solely from that other phase ‘:
oil a peace orflcer’e duty to the prisoner himsell, to exercise rea- ,’
eonable and ordinary care to proteot hle ilfe and health, we are of :
r
1~
-
Ponijrable aeo. H: uheppard, February 16, 1939, Page 4
the opinion that the lotlon of the Patrolmen In thIe oaee wae amp-
ly Justdried by the raote. The oonaltlon of the prisoner, whloh
beoame so orltloal a6 to require medical attention during hIa
traneportatlon was not brought about by the negligence of the
Texae Highway hatrol In taking him rrom, Iavarro County, or by any
lot or ommleelon on the part of raid Patrol whI1e he warn In ouetody.
Hot to hate furnlehetl medical attention under the elroumrtanoes
would have been a wanton and reokleee disregard of the oommon dlo-
tatee of humanity.
But deeplte the prleoner’e orItIoal ,ana Inrolvent oond-
tlon, and this faithful dlroharge or the duty rertlng upon the
Rate Highway Patrol to the State and to the prl6oner, the olalm
presented with your letter oannot be by you allowed ana paid, In
the abeenoe or some ltatute so providing; beoauee It Is the gener-
al rule that In the lbeenoe of some express provision of the law,
the public i6 not liable to a phyelolan or surgeon for ler vIa es
rendered a prisoner at the lnetanoe of a peaoe~orriaer, even though
Nob prisoner I6 insolvent and unable to ay for euah attention. 21
R.C.L. 1176; llolan vs. Cobb County, 81 3. E . 124, 50 L.R.A. (g.8.)
lW3, ana notes.
That the LegIelature of Texae, in reoognition or this
duty or a peace errloer to preserve the life of hIr prisoner, Intend-
ed to provide for the payment of ex eneeB OeotkLrrp:i?.p this end, Is
ovlaenoea by Artlole 1040, 9eo. S, 8 ode of Criminal Prooedure, provia-
lng a6 rollowe:
‘For the safe keeping support and malnte-
manoe of prleonere oonfIne6. In Jail or umber
guard, the sheriff shall be allowed the follow4ng
charger :
‘3. Par naoereary ledloal bill and reaaon-
,able extra oompenratlon for att,entIon to a prle-
onor during eIckneee Noh an amount ae the oom-
mIeeIonere oourt of Che county where the prisoner
Lm oonrlqed may determine to be Just and proper.*
The prleoner, Jaok ~atklne, ram olearly under guard, wlth-
In the meaning of the above statute eo a8 to make neoeseary medloal
bills a proper olalm lgalnet Milan bounty, had the prleoner been In
the ouetody of the rherlff theMof.
But under Artialee 4413 (121, and 4413 (11)) Ver no n’ l
Annotated Civil btatutee, Highway Patrolmen were olothea with all the ,:
power and authority of such sheriff. Ii the question be made that
the prisoner ehould therefore have been taken to the.JaIl of nilam
County In order that proper medIaa attention might have been af-
forAed, and elalm therefor pala under Artiale 1040, Code of Criminal it
Honorable Qeo. H. Bheppard, rebruarx 15, 1939, page 6
Prooedure, hereinabove quoted, we may that the racte berore u8 re-
veal that Milan County did not have proper faellItIee for this pur-
pose, and the Texar Highway Patrol was Juetlfled, In thIe extreme
emergenoy, In taking the prisoner to the nearest and beet plaoe for
treatment and rare keeping.
Am Illuetratlve or this dIeoretlon to waive N&Wory ror-
malItIe In lmergenolee, we cite the oaee of Lamar vs. Pike County,
30 8. g. 912, holding that a oountg was liable ror medloal services
rendered by a phyelolan Nmmoned by the Jailer to attend a prisoner
in an emergenoy not admitting of the four hours’ delay neoeenary to
proaure the attendanoe of the learetary of the board of health, who
rerlded twelve miles away from the Jail, notwlthrtanalng the rtat-
ute provided that the latter should render 6uoh medical eervIoee as
wore required by prisoners. The ootart raid:
#In the oaee before us It was the duty or
gmlth, the Jailer In aharge of the prisoner and
acting for the lherlfr, to summona oompetent
phyelolan under the exlstlng emergenoy to treat
the prisoner, and thereby save his life, If eueh
oould be done. It would have been Inexcusable
negleot on the part of the $aIler to have waited
four hours to summon the eebretary of the board
of health, twelve miles distant, when the neaeea-
lry mealoal ala ooula be obtained Speedily and
near at hand, and was eeeentlal to rave the life
of the prlroner. . . . Ue oannot believe that the
law Intended where a man was In Jail, ad In need
OS medical service under the emergenoy existing
in this oaee, where the board of oounty oommle-
.eIonere had appointed a eeoretary of the board of
health, whose duty It war In euoh oases to render
suoh medical l66letanoe, but whose rerldrnoe war
so remote from the oounty Jail that he could not
be prooured In time to render the aid needed,
that the prisoner rhould be left to suffer and
perhaps ale, and that the oounty would not be
liable ror the rervloee thus rendered by a phy-
sician under the employment of the Jailer having
the prisoner In oharge. ’
/ Furthermore, by the lxpre66 teq6, of Artlole 4413 (11)
Vernon’6 Annotated Civil Btatutee, It Ir oontemplated that the
state rather than the oounty ah611 pay expeneee neoeeearlly Incurred ~
by Highway Patrolmen In line ,of duty. Bubdlvlrion (4) or this Artl- .,
ole outlines the powers and dutIe6 of %ngere In the exeoutlon of
criminal process, and provIde6: “All neoeeeary expenses thus lnour- t:
red shall be ala by the state.* A6 this statute applies to members .:
of the Texas EIghway Patrol, and elnoe the medical and ho6pItal ex-
1 ’
Honorable Boo. A. gheppard, hbruarT 16, 1938, Page g
penner In quertion were rearonably and aeorrrarlly oonneoted with
the lxeoutlon of orimlnal prore88, it follow8 that ruoh lx p en8e8
rhould be pal& by the Etato.
ihir leo OUnt h&r been apprOTed for payment out Of the ap-
propriation for the Ereoutlre Department, under General Laws, Forty-
fifth L8 lrlature, p. 1420, 8pproprlating #Q,OOO.OOunder kbdlrl-
8lon $a4 T for ‘payment of r&war&r and other lxpen8e8 aeoeesary for ’
enforcrment of the 1aU”.
For the realOn hrrelnabove 8et forth, lt 18 our oplnlon
that the Olalm in quertion undoubtedly oonrtltutel 8n expense ‘neoel-
8ary for the enforormefit of the law* within thlsgproprlatlon, and
TOU are. 8ccordfngly adrired that Iame I8 a proper charge lgaln8t
ruoh appropriation.
Your8 very truly
ATTORHEY
GERERALOF TFXAE
lly (6lgned) Pat M. Heff, Jr.
Pat M. lieif, Jr.
Am818tant
PHtl:FG
APPROVED
:
ATTORNEY
GENFiRAL
OF' TEXA8