Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
September 4, 1979
Honorable Joe Resweber Opinion No. MW-52
Harris County Attorney
1001 Preston, Suite 634 Re: Incarceration of municipal
Houston, Texas 77002 prisoners in the Harris County Jail.
Dear Mr. Resweber:
You have asked our opinion on several questions.
You first ask whether a person arrested for violating only a municipal
ordinance may be legally incarcerated in the Harris County Jail, absent an
agreement between the city and the county under the Interlocal Cooperation
Act, article 4413(32c), V.T.C.S.
A city has authority to enact ordinances and provide for their
enforcement. V.T.C.S. arts. loll (general law cities); ll75 (home rule cities).
The municipal court of a city has exclusive jurisdiction within the territorial
limits of the city in ail criminal cases arising under the ordinances of the
city. V.T.C.S. art. Il95; Code Crim. Proc. art. 4.14. See Rx parte Levine, 81
S.W. 1206 (Tex. Crim. 1904); Attorney General Opinion-5416 (19431 (justice
court does not have jurisdiction over violation of city ordinancel. The mode
of procedure in municipal court is set out in chapter 45 of the Code of
Criminal Procedure. Article 45.05 is the most specific provision dealing
with custody of persons accused of violating a~city ordinance:
When the defendant in such cases [proceedings in
municipal court1 Is committed to custody, he shall be
committed to the custody of the chief of police or
city marshall of such city, town or village, to be held
by him in accordance with the ordinance providing for
the custody of prisoners convicted before such . . .
[municipal] court.
This provision clearly contemplates that a city is responsible for
providing a place for city prisoners. In Attorney General Opinion G-7353
(19461, thii office considered the predecessor of this article and held that the
maintenance of prisoners who are defendants in corporation court cases is
the responsibility of the city and that the county commissioners court had no
legal authority to pay a claim for feeding such prisoners. Thii opinion was
rendered prior to the enactment of the Interlocal Cooperation Act.
P. 165
Honorable Joe Resweber - Page Two (Mw-52)
In Ex parte Ernest, 136 S.W.2d 595, 597 (Tex. Crim. 19391, the court quoted the
general rule that ‘Ia municipal corporation’s powers cease at municipal boundaries and
cannot, without plain manifestation of legislative intention, be exercised beyond its
limits.” The court then said:
Municipal ordinances are, therefore, necessarily local in their
application, operating usually only in the territory of the
municipality in which they are enacted and without force beyond it.
E See also City of Arlington v. Lillard, 294 S.W. 829 (Tex. 1927); City of Sweetwater v.
Hamner, 259 S.W. 191(Tex. Civ. App. -Fort Worth 1924, writ dism’d).
In prosecutions involving violations of ordinances only, the state is not the real party
in interest, but is only a nominal party. Attorney General Opinion V-R47 (19511. See
Howth v. Greer, 90 S.W. 211(Tex. Civ. App. 1905, writ ref’dl. Thus, the county attorney
has no duty to represent the prosecution in corporation court in such cases, despite the
constitutional du,ty to represent the state in all cases in the district and inferior courts in
their county imposed by section 21 of article V, Texas Constitution. Attorney General
Opinion V-R47 (1951). A justice court has no jurisdiction or authority over violations of
city ordinances. Attorney General Opinion G-5416 (1943). Neither do we believe that the
sheriff has a duty to enforce city ordinances by incarcerating persons accused of
violations absent a plain manifestation of the legislature’s intent that a city may impose
such a duty on the sheriff and the county.
In a case ln which a~city assessed a county for paving, the~Texas Supreme Court held
this action invalid and explained that the charter of the City of Houston was not intended
by the legislature to confer on municipal government powers which would invade and
interfere with the functions of government committed to the county commissioners court,
or to impose burdens on the county independent of or against the orders of such court.
Harris County v. Boyd, 7 SW. 713,715 (Tex. 1888). The court determined that the city had
no power “to impose, upon the county a burden for a local benefit, and without its
sanction.” 5 at 714.
Thus, while a municipal court judge is a magistrate, Code Crim. Proc. art. 2.09, and
has broad powers in that capacity to enforce the laws of the state, Code Crim. Proc. arts.
2.10, 6.01, 7.01, 8.04, 14.02, 15.01, 15.03, 15.04, 15.07, 15.17, 16.01, 16.20, 17.031, 18.01, and
while a city police officer is a peace officer, Code Crim. Proc. art. 2.12, with broad
powers in that capacity to enforce the laws of the state, Code Crim. Proc. arts. 2.13, 2.14,
6.05, 6.06, 8.01, 8.04, 8.05, 8.08, 14.01, 14.04, 14.06, 15.01, 15.16, 15.17, 18.01, it is our opinion
that neither of them, nor the governing body of the city has authority to impose upon the
county a burden in a matter of exclusively local concern such as the enforcement of a city
ordinance, absent specific statutory authority or an agreement by the county to assume
such responsibility.
The legislature has made provision for interlocal government agreements including
those between counties and cities, and including the subject of jails. V.T.C.S. art.
p. 166
Honorable Joe Resweber - Page Three (MW-52)
4413(32c) SS 1, 4. Provision for such agreements would be unnecessary, and the county
would have no choice in the matter if a city through its officers could impose a major
portion of the burden of enforcing a purely local ordinance on the county and its law
enforcement facilities. We believe that a city’s right to enact local ordinances and to
collect fines for their violation, Code Crim. Proc. arts. 45.06, 45.ll, carries with it the
responsibility to make provision for its own prisoners.
Your next question is whether a prisoner committed to the custody of the sheriff can
be released temporarily to another police agency. Article 5ll6, V.T.C.S., states in
pertinent part:
(a) Each sheriff is the keeper of the jail of his county. He shall
safely keep therein all prisoners committed thereto by lawful
authority, subject to the order of the proper court, and shall be
responsible for the safekeeping of such prisoners.
See Code Crim . Proc. arts. 2.18, 16.21. If a sheriff transfers custody of a prisoner to
Ether officer without an order of the proper court, or without statutory authority, see
V.T.C.S. article 5ll7 (receiving and delivering federal prisoners), he ls either in violation-
his statutory duty or will continue to be responsible for the prisoner as though the other
person were his agent. Wolf v. Perryman, 17 S.W. 772 (Tex. 1891).
SUMMARY
A sheriff has no duty to incarcerate a person in county jail when
the person is arrested for violating only a municipal ordinance,
absent an lnterlocal agreement for such use of the county jail. If,
without a court order or statutory directive, the sheriff releases a
prisoner to another police agency, he remains responsible for the
prisoner.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by William G Reid
Assistant Attorney General
p. 167