Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 29, 2008
The Honorable David Aken Opinion No. GA-0605
San Patricio County Attorney
San Patricio County Courthouse, Room 108 Re:The meaning of "proper magistrate" or
Sinton, Texas 78387 "proper court" within article 15.20(b), Code of
Criminal Procedure (RQ-0624-GA)
Dear Mr. Aken:
You ask about the county sheriff s duties under amendments to Code of Criminal Procedure
chapter 15 adopted by Senate Bill 909 ofthe Eightieth Legislature. 1 See Act of May 28, 2007, 80th
Leg., R.S., ch. 1308, §§ 1-3,2007 Tex. Gen. Laws 4395, 4395-96. We will summarize the relevant
provisions of law and then address your questions.
Code of Criminal Procedure articles 15.18 through 15.21 provide for arresting an individual
pursuant to an out-of-county warrant for an offense committed in the county issuing the warrant. See
TEX. CODE CRIM. PROC. ANN. arts. 15.18-.21 (Vernon Supp. 2007). If the arrested person does not
give bail, he is committed to jail in the arresting county and the sheriff of the county where the
offense allegedly was committed is notified of the arrest. See ide art. 15.19. The sheriff receiving
the notice "shall forthwith go or send for the arrested person and have the arrested person brought
before the proper court or magistrate." Id. art. 15.20(a). If the sheriff fails to do so within eleven
days after the person is jailed in the arresting county, the prisoner must be released. See ide arts.
15.20-.21. Senate Bill 909 amended articles 15.19 through 15.21 to address a practical problem that
sometimes arose when a parolee was arrested and jailed in a county under both an out-of-county
warrant and a warrant issued pursuant to Government Code section 508.251 for violating the
conditions ofparole. See ide arts. 15.19-.21 (Vernon 2005 & Supp. 2007); TEX. GOV'T CODE ANN.
§ 508.251 (Vernon 2004). As will be explained below, the sheriff of the county issuing the arrest
warrant did not always send for the prisoner, instead leaving him detained in the other county jail
under the parole violation warrant.
When a parolee is arrested for an offense or violates the conditions ofhis parole, the director
of the Board of Pardons and Paroles may issue a warrant pursuant to Government Code section
508.251 requiring the parolee's return to the institution from which he was paroled. See TEX. GOV'T
ILetter from Honorable David Aken, San Patricio County Attorney, to Honorable Greg Abbott, Attorney
General ofTexas, at 1 (Sept. 5, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable David Aken - Page 2 (GA-0605)
CODE ANN. §§ 508.251 (Vernon 2004) (issuance of warrant), 508.252(2) (the grounds for issuing
a parole revocation warrant include the parolee's arrest for an offense). A warrant issued pursuant
to section 508.251 is known as a "blue warrant.,,2 Any officer named by the blue warrant may take
custody of the person and detain him until a parole panel orders his return to the institution from
which he was released. See id § 508.254(b). Pending a hearing on a charge ofparole violation, the
person must remain confined. See ide § 508.254(c). See also Gagnon V. Scarpelli, 411 U.S. 778
(1973) (circumstances when the state must provide counsel to indigent probationers or parolees in
revocation hearings); Morrissey V. Brewer, 408 U.S. 471,485 (1972) (due process requirements for
parole revocation). The parolee is entitled to a preliminary hearing within a reasonable time. See
TEX. GOV'T CODE ANN. § 508.2811 (Vernon 2004). A revocation hearing to dispose of the parole
violation charges is held before the 41 st day after the date on which the blue warrant was executed,
with certain exceptions. See ide §§ 508.281 (hearing), 508.282 (deadline for providing hearing); 37
TEX. ADMIN. CODE ch. 146 (2007) (Tex. Bd. of Pardons and Paroles, Revocation of Parole or
Mandatory Supervision).
The deadline for providing a revocation hearing does not apply when a parolee arrested on
a blue warrant is charged with a new offense, "other than an offense punishable by fine only
involving the operation of a motor vehicle." TEX. GOV'T CODE ANN. § 508.2811(2)(B) (Vernon
2004); see ide § 508,.281. Thus, before Senate Bill 909 was adopted, a prisoner arrested for both a
parole violation and a new offense allegedly committed in another county might remain in the
arresting county's jail for an indefinite time, because the Board of Pardons and Paroles typically
would not deal with the parole violation until after charges on the new offense were resolved. See
HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. S.B. 1428, 80th Leg., R.S. (2007) at 3. 3
The parolee would usually remain in the arresting county's jail under the blue warrant, and the
sheriff of the county where the offense was allegedly committed could postpone sending for him,
shifting the expense of incarceration to the arresting county. See ide
Senate Bill 909 amended articles 15.19 through 15.21 to address this problem. See ide at 2.
Pursuant to the amendment, article 15.19 provides as follows:
(a) If the arrested person fails or refuses to give bail,4 as
provided in Article 15.18, the arrested person shall be committed to
2These warrants are called "blue warrants" because they are printed on blue paper. See HOUSE RESEARCH
ORGANIZATION, BILL ANALYSIS, TEX. S.B. 1428, 80th Leg., R.S. (2007) at 1.
3The amendments to Code of Criminal Procedure chapter 15 were introduced by Senate Bill 1428, which was
not adopted. See Tex. S.B. 1428, 80th Leg., R.S. (2007). The substance of Senate Bill 1428 was added to Senate Bill
909 as an amendment. See S.J. of Tex., 80th Leg., R.S. 5337 (2007).
4A person arrested for violating parole conditions is not entitled to bail, because the Texas constitutional right
to bail does not apply to prisoners after conviction. See TEX. CONST. art. I, § 11 (right to bail); Ex Parte Laday, 594
S.W.2d 102, 103 (Tex. Crim. App. 1980) (constitutional right to bail applies only to prisoners prior to conviction). A
state's failure to provide parolees with a bail hearing when they were arrested on new bailable criminal charges did not
violate the Eighth Amendment or the due process clause ofthe Fourteenth Amendment. See Faheem-El v. Klincar, 841
F.2d 712, 728-29 (7th Cir. 1988).
The Honorable David Aken - Page 3 (GA-0605)
the jail of the county where the person was arrested; and the
magistrate committing the arrested person shall immediately provide
notice to the sheriff of the county in which the offense is alleged to
have been committed regarding:
(1) the arrest and .commitment, which notice may be
given by telegraph, mail, or other written means; and
(2) whether the person was also arrested under a warrant
issued under Section 508.251, Government Code.
TEX. CODE CRIM. PROC. ANN. art. 15.19 (Vernon Supp. 2007). Article 15.20, as amended, sets out
the duties of the sheriff who receives the notice:
(a) Subject to Subsection (b), the sheriffreceiving the notice
of arrest and commitment under Article 15.19 shall forthwith go or
send for the arrested person and have the arrested person brought
before the proper court or magistrate.
(b) A sheriff who receives notice under Article 15.19(a)(2)
ofa warrant issued under Section 508.251, Government Code, shall
have the arrested person brought before the proper magistrate or court
before the 11th day after the date the person is committed to the jail
of the county in which the person was arrested.
Id. art. 15.20. If the proper officer5 of the county where the offense allegedly was committed does
not take charge of the arrested person "before the 11th day after the date the person is committed to
the jail of the county in which the person is arrested, the arrested person shall be discharged from
custody." Id. art. 15.21.
You ask on behalf of the San Patricio County Sheriff "what is a 'proper magistrate' or a
'proper court'" before whom to bring a person arrested on a blue warrant. See Request Letter, supra
note 1, at 1. You also ask whether the arrested person would have to be brought or sent to the county
where he was paroled to be taken to the "proper court" or a "proper magistrate" and whether the
court or magistrate must have jurisdiction ofthe offense for which the person was arrested. See id.;
see also Brief from Jesus L. Santos, Assistant County Attorney, San Patricio County, to Honorable
Greg Abbott, Attorney General of Texas, at 1 (Sept. 18, 2007) (attached to Request Letter)
(hereinafter Santos Brief).
5Although Code of Criminal Procedure article 15.21 uses the term "office," this appears to be a typographical
error, because the bill adopting this provision uses the term "officer." See Act ofMay 27, 1965, 59th Leg., R.S., ch. 722,
1965 Tex. Gen. Laws 317, 368 (adopting Texas Code of Criminal Procedure).
The Honorable David Aken - Page 4 (GA-0605)
The terms "court" and "magistrate" are used interchangeably in Code ofCriminal Procedure
article 15.20. See Ex parte Lowery, 518 S.W.2d 897, 901 (Tex. Civ. App.-Beaumont, 1975, no
writ) ("court" and ''judge'' are sometimes used interchangeably). Article 15.17(a) provides that "[i]n
each case enumerated in this Code, the person making the arrest or the person having custody ofthe
person arrested shall ... take the person arrested or have him taken before some·magistrate of the
county where the accused was arrested or, to provide more expeditiously to the person arrested the
warnings described by this article, before a magistrate in any other county ofthis state." TEX. CODE
CRIM. PROC. ANN. art. 15.17(a) (Vernon Supp. 2007). Accordingly, the San Patricio County Sheriff
must take an arrested person before a magistrate of San Patricio County, or, to provide the
magistrate's warnings more expeditiously, before a magistrate in any other county. Code ofCriminal
Procedure article 2.09 identifies officers who are magistrates within the meaning of the code. See
ide art. 2.09; see generally Tex. Att'y Gen. Ope No. GA-0426 (2006) (considering who are
.magistrates for purposes of Code of Criminal Procedure article 15.17). These magistrates preside
over "proper courts" and are "proper magistrates" before whom a San Patricio officer should bring
an arrested person.
Article 15.20 has long provided that "[t]he sheriff receiving the notice shall forthwith go or
send for the prisoner and have him brought before the proper court or magistrate." See Act ofMay
27,1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 367 (adopting Texas Code ofCriminal
Procedure) (emphasis added). Senate Bill 909 carries this requirement forward in article 15.20(a),
which provides that the sheriff who receives notice to send for a person arrested in another county
, "shall forthwith go or send for the arrested person and have the arrested person brought before the
proper court or magistrate." TEX. CODE CRIM. PROC. ANN. art. 15.20(a) (Vernon Supp. 2007); see
ide art. 15.21 (establishing specific deadline for sheriffto take charge ofprisoner). Article 15.20(b),
adopted by Senate Bill 909, establishes the same requirement for "[a] sheriff who receives notice
under Article 15.19(a)(2) ofa warrant issued under Section 508.251, Government Code," providing
that he "shall have the arrested person brought before the proper magistrate or court before the 11th
day after the date the person is committed to the jail ofthe county in which the person was arrested."
Id. art. 15.20(b) (emphasis added). Senate Bill 909 was adopted to give the county sheriffthe same
responsibility to take charge ofa person arrested on both an out-of-county warrant and a blue warrant
that he already had for a person arrested on only an out-of-county warrant. See HOUSE RESEARCH
ORGANIZATION, BILL ANALYSIS, Tex. S.B. 1428, 80th Leg., R.S. (2007) at 3. The magistrate or
court before whom the sheriff takes a person arrested on an out-of-county warrant will be a proper
magistrate or court for a person arrested on both kinds ofwarrants. Moreover, the Board ofPardons
and Paroles, and not San Patricio County, is responsible for providing the appropriate hearings to
a parolee arr~sted under a blue warrant. See TEX. GOV'T CODE ANN. § 508.281 (Vernon 2004)
(revocation hearing before a parole panel or a designated agency ofthe Board ofPa~dons and Paroles
under rules adopted by the board), ide § 508.2811 (preliminary hearing provided by parole panel or
designee ofthe board). Thus, the amendments adopted by Senate Bill 909 do not require the sheriff
to take the arrested parolee to a magistrate in the county to which the person was paroled.
You finally express concern that the magistrate should have jurisdiction of the alleged
offense in order to perform a magistrate's duties under chapter 15. See Santos Brief at 1. A
particular magistrate may perform a magistrate's duties under chapter 15 for the alleged offender
The Honorable David Aken - Page 5 (GA-0605)
even though he is not authorized to try the offense on the merits. See generally Alberti v. Sheriffof
Harris County, 406 F. Supp. 649, 670 (S.D. Tex. 1975) (city judge, sitting as a magistrate, may
accept complaints and issue arrest warrants on cases which he cannot try on the merits) (citing
Attorney General Opinion C-718 (1966) at 2). Accordingly, it is not necessary for the magistrate
who performs duties under chapter 15 to have authority to try the offense on the merits.
The Honorable David Aken - Page 6 (GA-0605)
SUMMARY
When an individual arrested on an out-of-county warrant
under Code of Criminal Procedure article 15.18 is also arrested on a
parole revocation warrant, the magistrate who places the arrested
person in jail must immediately notify the sheriff of the county in
which the offense is alleged to have been committed of the arrest on
both warrants. The sheriff receiving the notice must take charge of
the arrested person and have him brought before the proper court or
magistrate. The proper magistrate is an officer of the county
identified by Code ofCriminal Procedure article 2.09 as a magistrate,
and the proper court is the court over which the magistrate presides.
The sheriff may take the arrested person before a magistrate of the
county where the person is held, or, to provide the magistrate's
warnings more expeditiously, before a magistrate in any other county
of the state. The sheriff is not required to take the arrested person to
a magistrate in the county to which the person was paroled. A
magistrate may perform a magistrate's duties under chapter 15 for an
alleged offender even though he is not authorized to try the offense
on the merits.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee