253 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

aonorabls 1. I;. MaClaln 

31striot Attorney 

Gaorgatoun; Texa8 

Dear Slfr 

Your letter requrrtlng ee opini 

matter ir l 8 fO11OW8r 

present when the OS88 

ante& thst LO be tt.iad 

p8 or t&o Cede ot 

ld eoontro1. sh8t 
254 

tIo5orable W. Ii. Moclain, pw 2 

Vur statute directs that the Sheriff shall _ 

sreoute the same; 

or city marshal. 

and not some other peaoe oiflosr 

I thererore'doubt ii we 0fm read 

into the statute the word constable or *other:$oaoe 

orri0e as contended by f&r. Kodges. Pleas&'sdvise 

U8 On the above question, and I will appreoiate the 

IlamB.” 

Article 4-41, V. A. C. C. P., d&in88 a 08pAa8 88 *a writ 

Issued by the oourt or olerk, and directed *To any Sheriff or 

the State or Texasr oommandlng him to arrest a person aooueed 

or an orr0n.90 and bring him berore that court forthwith, or on 

a day or at a term etated In the writ.* 

Article 453, V. A. C. C. P., state8 that a oapias map be 

exeoated by any oonstable or other peace offioer. 

V. A. C. C. P., 

Artlob 36, 

states that city marshal8 are pa08 orricers. 

Article 918, V. A. C. C. P., whloh 18 found in Title 11 

concerning prooedure In the juatlos and oorporatlon courts, 

8t8tBs, "Ii the defendant be not in OU8tOdy when Judgment i8 

rendered, or ii he esoapes mm oustody,thersert.er, a oaplae 

shall fsaue r0f hi8 arrest and oonri’n6ment in jail until he 

is legally dlsoharged.* 

In the ease or Er parte Fernandez, 57,s. W. (2d) 576, 

the Court oi Criminal Appeals held that Itrtiole 920, C. C. P., 

applied to a oa6e of oonviotion in the justloe gourt rather 

than Article 793, V. A. c. c, P., ror the reason that Article 

920 had reference to judgments or conviotlon in oriminal aotions before a justloe oi the eaoe while Article 793 had 

referenoe to judgments 0r conv f otion in orimlnal aotions in 

oourta of higher jurisdiotion. The oourt used the following 

language, on page 579: 

'The chapter in which artiole 920, eupm, 

appears ia one having rehavmoo to a judgment 

0r oonviotion in a oriminal action belore a 

justloe 0r the peaoe, From what has been said 

it Is apparent that the statutory enaOtment8 

make a dletinotion on the aubdeot in hand with 

rerersnoe to the oonvlotion of a mirdrmeanor 

before the justioe of the peaoe and the oonviotion of a misdemeanor in oourtr of higher 

jurisdiation. . .* 
. 

255 

‘donorable W. IS. XoClaln, page 3 

Polloulng the reasoning of the above quoted 08188, it fr 

.our opinion that Article 913, siupra, would apply to a Oapias 

Issued by the juetloe court rather than Artiols 788, V.A.C.C.P. 

A oaplaa pro rine has been derined aa a writ r -.I ing In 

behalr and ror the benefit 0r a goverzzental ageno d”” , *to2 

oolleotion or tine and mean8 literally, you take,,for tho fine." 

See Word8 and Phraemt!, Vol. 6, page 60. Thersfom, a oapiaa 

pro ri56 ir in reality a special type or warrant or arrest. 

One or the requieltes ror a warrant ireued by the juetioe 

of the peaoe a8 eet out by Artiole 885, V. A. c. C. P., Is that, 

*It 8hall be dir‘eotsd to the proper rherlif, oonstabla or fmme 

other person name4 therein.* Therefore, it 18 Our opinfoh that 

the jud.loe of the peaoe may, ii 8% desirer to do so, lesue the 

aapIa@ pro fine In the name or Ethel State of Texaae, and dlreot 

it to the elty marehal. 

Xi the $l8tiOe Oi the 

5" 

aoe dirootr the oa iae to the oity 

-mares rugh otty nkarsha would be authorize i to 8OXVO it. 

Ho~~ver,~the’juidioe of the peaoe ia dot required to dixeot the 

aapiar to the oity marshal ii he doe8 not iaee lit to do 80, but 

he may direct the oaplar to "the proper sherifi, o0Sl8tablO or 

,aome other person named therein * as provided by Utiole 885, 

rupra , 

I J-R:ddt:JJ 

Your8 very truly, 

A!FJ!ORNiCY Gi3lWAL OF ‘l’%xAs