Untitled Texas Attorney General Opinion ( 1942 )

AUSTIN ~.TEXAS
GERALD C. MANN
Honorable George H. Sheppard
Comptroller of Public Accounts
Austin, Textis
Dear Sir: Opinion No. O-4444
Re: Payment of traveling expenses
of agent of Governor appointed
to return fugitives from jus-
tice to Texas.
Your letter of February 18, 1942, states that you de-
sire the opinion of this departmerit upon the following question.
May the expense3 of an employee of the De-
partment of Public Safety traveling as the agent
of'the Governor of Texas to the State of Callfor-
nia to return, to Texas fugitives from the justice
of this State be paid from the appropriation made
to the Department of Public Safety for traveling
expenses?
Our Code of Criminal Procedure, Article 1005, pro-
vides with respect to the raeturn of fugitives from justice:
"When the Governor deems it proper to ae-
mand a person who has committed sn offense in
this State and has fled to another state -or ter-
Pitory, he may commission any suitable person
to tak.e such requisition. Q D 0 D
Code of Criminal Procedure, Apticle 1006, provides:
"The officer or person 30 commissioned shall
receive as compansatfon the actual and necessary
,traveling expenses upon requisition of the Gover-
nap to be alloyed by such Governor and to be paid
out of t,he 'Sts?,e TreasuPg upon a certificate of
the Gover-nor recitfng the services rendered and
the allowahce therefor."
The ap ropkiation bill for the current biennium pro-
vides the sum of P5,OOO.OO~ per fiscal year for the Governtr to
defray the "expense3 bf returnfrrg fugitive3 from "ustice.
(Acts 47th Legislature; Regular Session, page 115 !I .)
Honorable George H. Sheppati, page 2 0 -4444
In the case of Brightman v. Sheppard, 122 Tex. 318,
59 S .W. (2d) 112, the Supr”eme Cou& of Texas held that under. the
provisions of Article 1006, above quoted, an officer or private
person commissioned by the Governor to return a fugitive from
justice to Texas is for the purposes of the services rendered in
that connection the agent of the Governor, and must look to the
Governor for his compensation, to be determined by’the Governor
under the pPovfsions of Code of Criminal Procedure, Aptlcle 1006.
We, therefore, hold thatthe actual and necessary
traveling expenses of the employee of the Department of Public
Safety, if he traveled to California under the commission of the
Governor as the Governor’s agent to return to this State~‘such
tigltives from justice, ape to be paid from the appropriation
provided the Governor for r>eturning fugitives from justice, upon
the certificate of the Governor reciting the services rendered
and the allowance therefor.
Our4 Opinton No. O-3470 Is not applicable tothe in-
stant situation. Ir! that case, the traveling expenses of the
employee of the Department of Public Safety wepe not incurred
as the agent of the Governor, since extradition proceedings wer?e
not insitituted, the fugitive having waived extradition.
In respect totie traveling expense account under con-
sideration, we think it advisable to observe that consulta,tion.
with members of you,r department and an examination of the ex-
pense accuunts submitted for payment reveals that it is not clear
that the trip was made by the employee of the Department of Public
Safety as the agent of the Governor. Though the employee ap-
pears to have assisted o%her officers in returning the fugitives
involved to Texas, the expense account reveals that he conducted
an investigation in California 0 Since it is competent for the
Department of Public Safety ,to send their agents out of the
State for the purpose of conducting investigations of crimes
alleged to have been, ,commltted in this State, the traveling ex-
penses of the employee, if he did not travel as the agent of
the Governor;, may be paid from the appropriation made to the De-
partment of Public Safety, and the fact that he may have assist-
ed the agent of the Governor in rJeturning the figitives from
justice will not defeat that pa:yment.
Honorable George H. Sheppard, page 3 o-4444
Yours very truly
ATTORNEYGEXERAL OF TEXAS
By s/ROW. Fairchild
R.W. Fdrchlld
Assistant
RWF:LM:wc
APPROVEDMAR 5, 1942
s/Grover Sellers
FIRST ASSISTANT
ATTORNEYGENERAL
Approved Opinion Committee By s/BWB Chairman