Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Honorable H. D. Utringer County Attorney Hall County Hempyle, Texas
Dear Sir:
Opinion No. 0-5688
Re: Mileage fees of sheriff under the facts set forth.
Your recent request for an opinion of this Department on the question stated herein has been received.
We quote from your letter as follows:
"I enclose herewith copy of my opinion to Hon. W. C. Anderson, Sheriff, which is self-explanatory.
"I would thank you to advise me if I have correctly advised the Sheriff, and particularly with respect to his mileage as mentioned in the fifth paragraph on page one of my letter."
Your letter opinion, bearing date of May 16, 1941, addressed to Honorable W. C. Anderson, Sheriff of Hall County, reads as follows:
"You have requested my opinion as to your rights in case of out of county arrests in both miedemaker and colony prosecutions pending in this county.
"In case of a colony prosecution pending in this county you are advised that you have a right to arrest the offender in any county of this State
*2 Hon. H. 4. Stringer, page 2 unlers the warrant is leaued by a ounlty comnisaioner, commiaioners' court, mayor or reoorder of an Incorporated town. In event of the latter the provisions of Art. 224, C. C. P. ahould be oomplied with. "When an arrest is made out of this oounty in a felony case it is your duty to bring the offondar before a magistrate of this oounty. The offender is not entitled to make bail in the oounty of his arrest in such case. "In case of a misdemonor proeeoution pending in this oounty you are advised that you have a right to arrest the offender in any oounty of this State unleas the warrant is issued by a oounty comnissioner, commissioners' oourt, mayor or reoorder of an incorporated town. In event of the latter the provisions of Art. 224, C. C. P. ahoold be oomplied with. "When an arrest is made out of this oounty in a miedemeanor case it is your duty to take the offender before a magistrate of the oounty where you make the arrest. If the offender can make bail he should then be roleased. And in this situation you would be entitled to your mileage for going to the place of arrest, fee for arrest and fee for release, but you would not be entitled to your mileage for the return trip. "If the offender should not be able to make bail as outlined above you should return him to the jail of this oounty, and in which event you would be entitled to mileage both going and coming, in addition to your other fees. "You are further advised that it is not necessary that the arrest be made by an offloer of the oounty where the offender is located. Under the applicable provisions of Art. 223, C. C. P. you have authority to make an arrest anywhere in Texas."
Article 36, Vernon's Annotated Code of Criminal Procedure, provides:
*3 Hon. E. D. Eitringer, page 8 "The following are 'peace officers: the sheriff and his deputies, constable, the marshal or polieamen of an ineorporated town or city, the of ficers, non-commissioned officers and privater of the state ranger force, and any private person specially appointed to execute eriminal procesa."
Article 223, Vernon's Annotated Code of Criminal Procedure, reads as follows: "A warrant of arrest, issued by any county or district clerk, or by any magistrate (except county commissioners or commissioners courts, mayors or recorders of an incorporated eity or town), shall extend to any part of the state; and any peace officer to whom said warrant is directed, or into whose hands the same has been transferred, shall be authorized to execute the same in any county in this state."
It is elear, therefore, that a sheriff being a peace offiear as that term is defined in Article 86, supra, may exegute a warrant of arrest in any county in Texas. It was held in the case of Henson va. State, 49 S. W. (2d) 465, that Article 223, supra, does not extend the right of a peace offiear to make an arrest outside of his county in the abeemge of a warrant, and that an arrest made without a warrant is rold.
Article 224, Vernon's Annotated Code of Criminal Procedure, provides: "When a warrant of arrest is issued by any ountry commissioner or commissionerg court, mayor or recorder of an ineorporated eity or town, it can not be executed in another ountry than the one in which it issues, exeept: "1. It be indorged by a judge of a court of record, in which case it may be executed anywhere in the state, or "2. If it be indorged by any magistrate in the county in which the aecused is found, it may be executed in such county. The indorgement may be:
*4
Hon. H. D. Stringer, page 4
'Let this warrant be executed in the county of Or, if the indorsement is made by a judge of a court of record, then the indorsement may be: 'Let this warrant be executed in any ocunty of the tate of Texas.' Any other works of the same meaning will be sufficient. The indorsement shall be dated, and signed officially by the magistrate making it."
Article 1065, Vernon's Annotated Code of Criminal Procedure, reads in part as follows: "The following foes shall be allowed the sheriff, or other peace offloer performing the same services in misdemeanor oases, to be taxed against the defendant on conviction: "11. For each mile he may be compelled to travel in executing oriminal process and summoning or attaching witness, seven and one-half oents. For traveling in the service of process not otherwise provided for, the sum of seven and one-half cents for each mile going and returning. If two or more persons are mentioned in the same writ, or two or more writs in the same case, he shall charge only for the distance actually and necessarily traveled in the same." irticle 235, Vernon's Annotated Code of Criminal Procedure, provides: "One arrested for a misdemeanor shall be taken before a magistrate of the county where the arrest takes place who shall take bail and transmit immediately the bodd so taken to the court having jurisdiction of the offense." irticle 234, Vernon's Annotated Code of criminal Procedure, provides: "One arrested in one county for felony committed in another shall in all cases be taken before some magistrate of the county where it was alleged the offense was committed."
*5
Hon. H. D. Strieger, page 8
After carefully considering the above mentioned statutes in connection with the statements made in your letter opinion quoted above, we agree with all the conclusions stated therein eroept the statement in the fifth paragraph relative to the mileage the sheriff would be entitled to receive when the party charged with the misdemeanor offense is arrested in another county and taken before a magistrate of that county where he makes bail. You state that the sheriff would not be entitled to mileage for the return trip. It is our opinion that under Seotion 11 of Artiele 1068, supra, the sheriff would be entitled to the same mileage meaessarily and actually traveled on his return trip as he would be in going to the place of arrest.
Trusting that the foregoing fully answers your inquiry, we are
Your very truly ATTORNEY GENERAL OF TEXAS
Ardell williama Assistent