Untitled Texas Attorney General Opinion ( 1940 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable ST. M. AlLen
county Auditor
Hunf county
Greenville, Texas
Your letter aontalns the follow-
ing paragraphs request
bls and the
lndloted the man
the Dlstrlot
r arrest, whloh was
delivered to, the
ing issued to and
a arrest was made t&e oanetabls
d the address of’ the ZL?IIIunder
at this time was in Anson, Jones
The constable of Hunt County
able at Anson in fones oountg and
him arrest ths aooused man for him. The
Hunt County oonstable then goes to the sheriff
and asks for the warrant, seouras ssme and
drives his personal oar to Anson, brings the
man baok to Hunt County and plaoes him in jail,
and illsa a olaim against Runt County for 2.03
per mlls ror 256 m!les,
!?onorable 3. X. Allen, page 2
*The sherirr 0r Hunt County is on salary
basis.
“The constable 0r mat County is on ree
basis. Ia Eunt County liable to the constable
for t&e amount of fees in this 0888 as outlined
above?”
Artiole 441, Vernon’sCode of Criminal ?roceCure,
provldea t
**A o,?las’ is a writ issued by the court
or olerk, and dlreated ‘to any sheriff of the
State of Tsxae,’ oorrmndln~ him to arrest a
person aooused of an offense and brlns hlm
before that oourt forthwith, or on e day or at
a time stated in the writ.”
Article 443, Vernon’s Code of Crlmlnal Procedure,
provides t
“A caplas shall be immediately fo~?ued by
The Nstrict Clerk uon each lnd?otxent for
felony ureaented. and shall be. dellvored b!?
the oie;k or mea&d to ~the sheriff’ of ~the -
co*lnty where the sherirr resides or is to be
found.”
Artlols 453, Vernon’s Code of Criminal ?rooe.lure,
provides:
*A oapias nay be exeouted by any osnstoble
or peaoe off leer. In felony oases, the de-
rendant .aust be delivered forthwith to the
sheriff of the oounty where the arrest Is
mode, together %ith the w:lt under which he
was tnken .*
Xc note that you state in your request a *war?ant”
was issued, ‘Under the statutes, after indiotxent is returned
in felony oases, the proper writ to be issued by the clerk
is a *oap:as”. As suoh writs are commnlg referred to as
warrants, we nust presune under the faots submitted that the
proper prooess was ls^uec?.
AoaorE1r.g to the 1930 Federal Census, Hunt County
has a population of 49,016 lhhabitants or ln exoess of
40,000, csnsequently Artlole 1029, Vernon’s Code of Criminal
Honorable J. X. Allen, page 3
Frooeduro, is ap.~lloable as to mileage i8ea pyablo ln such
eases with the rees speolflad therein oontrolled by the fol-
lowing seetlonsl
*l.* f”~
axeouting eaoh warrant or arrest or
oaplas, and in all oases five aents per mile
for eaah mile aotually and neoessari1y traveled
in going to the plaos of arrest; and tor oon-
veyfng each ?rlsoner to jail! he rhall reoelve
the mileage provided In subdivlsloa 4.
**t* .
r* * * .
“4. Bar reaovlng or oonveylng prisoners,
ror eaoh mile going and coming, including
guards and all other neoeesary expenses, when
tratelling by rellroad, ten oenta. ;ihen travsl-
fnz ~~harwlse than by rallroad, rourteen aents)
Under the oonstruotlon 2lsced upon the foregoing
mileage 9rovisione of krtlole 1029, supra, and previously
followed by thls deaartaent, the officer is allowed five
oents ,er mile -0ing snd a tots1 o.f twenty-eight dents per
mile returning t fourteen cents for the oonstable and fourteen
oents for the prisoner) for eaoh mile aotually and neoessarily
traveled.
:t;e call your attention to the ~rovlsfone of Artiole
3912e, Vernon’s Civil .Ttatutes, which reads, in ?art, es fol-
lows 1
Yectlon 17. (a) * * + . In all oounties
in this qtata suoh qreolnat orfloers shall oon-
tinue to be compensated for their eervloes on a
fee basis until the Coaalssloners’ Court shall
have detontlned otherwise in aocordanas with
the provlsfona or Teotlon 2 of this liot. * + *.
“In oountlas wherein the aounty offioers
naexed in this hot are somaensated on the basfs
of an annual salary, the ?tate of Texas shall
not be oharged with and shall not pay any fee
or ooanlsslon to any preoinot ofrloer ror any
services by bin p&o&d, but said orflcer
shell be yaid by the county out of the CSiicere
.T
~:alsry Fund such foes and comxlssions as rould
I?onorable J. &I. Allen, page 4
It is thsrsfore, thr opinion of this department
that under the facts -resented in your request, Runt County,
with a population in exoess of 40,000 inhabitants and its
preoinot offiosra oom?ensated for their services on an annual
fee basis, is liable to the constable for the mileage fees
re?resenting the miles aotually and neceesarilg trnrelled in
going to the plsoe of arrest at the rate of five aants ?or
mile and in returning with his prisoner at the rate of twenty-
eight oents per zile. 3uoh fees are payable iron the Offiosrs
Salary Fund ot the county.
Yours very truly