Case Information
*1 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 of agent of Governor appointed to return fugitives jus- tice to Texas. of February 1942, states letter that you de- Your
sire the opinion of this departmerit upon the following question.
May the expense3 of an employee of the De-
partment of Public Safety as the agent of'the Governor of Texas to the State of Callfor- nia to return, to Texas from the of this State be paid from the appropriation made to the Department of Public Safety
expenses?
Our Code of Criminal Procedure, Article 1005, pro- vides with respect to the raeturn of fugitives justice:
"When the Governor deems it proper to ae-
mand a person who has committed sn offense 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 rendered and the allowahce therefor."
The ap ropkiation bill the current biennium pro- vides the sum of P 5,OOO.OO~ per fiscal year for the Governtr to "expense3 bf returnfrrg fugitive3 from "ustice. defray the page 115 !I .) (Acts 47th Legislature; Regular Session,
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 to Texas is the purposes of the services rendered that connection the agent of the Governor, and must look to the to be determined by’the Governor Governor for his compensation, under the pPovfsions of Code of Criminal Procedure, Aptlcle 1006.
We, therefore, hold thatthe actual and necessary 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 from justice, ape to be paid from the appropriation tigltives provided the Governor for r>eturning justice, upon the certificate of the Governor reciting rendered and the allowance therefor.
Our4 Opinton No. O-3470 Is not applicable tothe in- situation. Ir! that case, the traveling of the stant 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 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 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- and the fact that he may have assist- partment of Public Safety, ed the agent of the Governor in rJeturning the figitives justice will not defeat pa:yment. that
Honorable George H. Sheppard, page 3 o-4444
Yours very truly ATTORNEY GEXERAL OF TEXAS By s/ROW. Fairchild R.W. Fdrchlld Assistant RWF:LM:wc
APPROVED MAR 1942
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman