Untitled Texas Attorney General Opinion ( 1952 )

July 30, 1952
Hon. Robert S. Calvert
Comptroller of Public Accounts
Austin, Texas Opinion No. V-1488
Re: Legality of paying mile-
age,fees to a sheriff for
bringing a defendant in a
murder case to Austin
under a bench warrant to
take a lie detector test
at the Department of
Dear Sir: Public Safety.
Your request for an opinion reads in part as
follows:
"This Department has received a Dls--
: trict Court Fee Bill from the sheriff of
Sutton County,:a fee county, for taking a
defendant on a bench warrant in a murder
case from Sonora to Austin, and return to
Sonora.
"The defendant was indicted on Sep-
tember 4, 1951, on a murder charge. On
November 29, 1951, the District Judge of
the 112th Judicial District Court in and
for Sutton County issued a bench warrant
commanding the sheriff of Sutton County
to take the defendant to Austin.before the
proper officer of the Department of Public
Safety, and have him there,on December 7,
1951, at or before nine A.M. to take what "
is commonly called a lie detector test;
and to keep him there for the purpose of
said examination and to return hlm~safely
to the county jail of Sutton County, Tex-
as, when the test was completed.
"This Department requests your opinion
as to,whether the sheriff of Sutton County
is entitled to mileage fees under the provi-
sions of Article 1030 C.C.P. for conveying
. .
Hon. Robert S. Calvert, page 2 (v-1488)
said defendant from Sutton County to Austin
and return. In the event you hold these
fees are Dayable, would each mile traveled
in takingthe defendant to Austin, and re-
turning him to Sqora, be at the rate of
15$!per mile for the prisoner, and 15$ per
mile for the sheriff, at a total rate of 30#
per mile?"
Subdivision 4 of Article 1030, V.C.C.P., pro-
vides:
"For removing a prisoner, for each
mile going and comlng;includlng guards
and all other expenses, when traveling by
railroad, ten cents; when traveling other-
wise than by railroad, fifteen cents; pro-
vided, that when more than one prisoner
is removed at the same time, in addition
to the foregoing, he shall only b,eallowed
ten cents a mile for each additional
prisoner."
This office has heretofore held that the
Comptroller Is authorized to Issue warrants for the
payment of mileage fees incurred by a sheriff In the
execution of "bench warrants" compelling the appear-
ance of persons in a case pending before the court
which issued the "bench warrant. Att'y Gen. Ops.
2967 (1935), 3011 (1937), v-1008 (1950), and v-1030
(1950)-
On the other hand it has been held by this
office that warrants may not be issued to pay mileage
fees for the execution of "bench warrants" not Issued
to compel the attendance of any person in a case or
in any manner necessary to the enforcement of the
court's jurisdiction of any person. Att'y Gen. Op.
O-4087 (1941) and Letter Opinion to Honorable George
H. Sheppard, Comptroller of Public Accounts, dated
August 1, 1935.
It is stated in the opinion dated August 1,
1935:
"You are advised that in my opinion
the sheriff would be entitled to his fee
as provided for in the statutes by reason
of serving process of the court for going
.’ .
Hon. Robert S. Calvert, page 3 (v-1488)
to the penstentiary and returning this
prisoner to,his county. ,He would~not be
entitled to a fee for returning the prlson-
er to the penitentiary as In my opinion the
District Judge has no authority to issue
a bench warrant or any other process order-
ing the sheriff to deliver a prisoner to
any other jurisdictlon. Thl~swould be a
matter for the penitentiary authorities
to handle and It would be their duty to
deliver this prisoner back to the peni-
tentiary."
In Attorney Gi?neral'sOpinion O-4087 It was
said:
?'Nelther the caplas nor bench warrant
is required to be rec.ognlzedby the Federal
authorities who ho,ldthe person as a Federal
prisoner. Since they turned over to,,the,~
sheriff their prisoner, at which tlme~It is
presumed the arrest was made, he then be-
P came the prisoner of the sheriff whose duty
extended no further than to convey him back
to his own county jail or to bring him before
the court issuing the bench warrant. lp~so ..
far as the Federal authorities or the bench.
warrant is concerned, requiring him to return ~.
the prisoner to the Federal jail after-trial
on the felony charge, fees for mileage so
~lnourredare not provided for nor within the
purview of the statute.
"When we,look to the above subdivision 4
of the article and attempt to apply it alone
to the facts, the sheriff, though armed with
both a caplas and bench warrant in going to
the jail In Austin, was not traveling for
the purpose of removing a prisoner. We can-
not extend the meaning of the word 'prisoner'
to include Federal prisoner, One outside the
reach of the processes of a State court.
Under the foregoing facts, subdivision 1 is
to be construed with subdivision 4, and since
the sheriff In going to the jail in Austin
was traveling 'in going to the place of ar-
rest,' he is allowed mileage on return with
his prisoner as provided in subsectl6n 4,
but not without further limltation~ Such
Hon. Robert S. Calvert, page 4 (v-1488)
mileage fee a.p@earsby the'proyl,slonsof
subdivls'ion1, to be retitric'tedby.the lan-
guage 'for conveying the prisoner'orprison-
ers to jail.I ' The statute does not allow
mileage for shy farther point or terminus
after making an arrest and for removing a
prisoner, than the jail over which the'
sheriff is keeper.
"Statutes prescribing fees for public
officers'are strictly construed and the
sheriff is entitled to such fees as stat-
utes authorize. Blgham v. State, 27'5S.W.
147, judgment reversed (Corn.of Ape.), 280
S.W. 1062.
"It is therefore the opinion of 'this
department that the sheriff, under the facts
sentforth, is not entltled to mileage fees
for returning the prisoner after trial on
a felony charge to the Federal jail in San
Antonio."
The "bench warrant" in question was not Issued
to enforce the court's jurisdiction of the prisoner or
to compel his attendance in a case, but was issued for
the purpose 'of having.whatis commonly called a lie
detector test made upon him, to which the defendant and
his attorney have agreed In writing,"
We how of no statute authorizing the State
to oas mileage fees incurred in the execution of "bench
warrants" of-this nature. You are therefore advised
that the sheriff In question Is snot entitled to mile-
age fees from the State In the Instant case.
SUMMARY
Under existing State statutes the
State is not liable for mileage fees incur-
red by a sheriff in the execution of a
"bench warrant' commanding the sheriff to
take a defendant from a county having
Hon. Robert S. Calvert, page 5 (v-1488)
jurisdiction of the defendant to Austin
for the purpose of taking a lie detector
test at the Department of Public Safety.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
E. Jacobsop
Reviewing Assistant
Charles D. Mathews
First Assistant
JR:am