July 30, 1952 

Hon. Robert S. Calvert 

Comptroller of Public Accounts 

Austin, Texas Opinion No. V-1488 

Re: Legality of paying mileage,fees to a sheriff for 

bringing a defendant in a 

murder case to Austin 

under a bench warrant to 

take a lie detector test 

at the Department of 

Dear Sir: Public Safety. 

Your request for an opinion reads in part as 

follows: 

"This Department has received a Dls-- 

: trict Court Fee Bill from the sheriff of 

Sutton County,: a fee county, for taking a 

defendant on a bench warrant in a murder 

case from Sonora to Austin, and return to 

Sonora. 

"The defendant was indicted on September 4, 1951, on a murder charge. On 

November 29, 1951, the District Judge of 

the 112th Judicial District Court in and 

for Sutton County issued a bench warrant 

commanding the sheriff of Sutton County 

to take the defendant to Austin. before the 

proper officer of the Department of Public 

Safety, and have him there, on December 7, 

1951, at or before nine A.M. to take what " 

is commonly called a lie detector test; 

and to keep him there for the purpose of 

said examination and to return hlm~safely 

to the county jail of Sutton County, Texas, when the test was completed. 

"This Department requests your opinion 

as to,whether the sheriff of Sutton County 

is entitled to mileage fees under the provisions of Article 1030 C.C.P. for conveying 
. . 

Hon. Robert S. Calvert, page 2 (v-1488) 

said defendant from Sutton County to Austin 

and return. In the event you hold these 

fees are Dayable, would each mile traveled 

in takingthe defendant to Austin, and returning him to Sqora, be at the rate of 

15$! per mile for the prisoner, and 15$ per 

mile for the sheriff, at a total rate of 30# 

per mile?" 

vides: 

Subdivision 4 of Article 1030, V.C.C.P., pro- 

"For removing a prisoner, for each 

mile going and comlng;includlng guards 

and all other expenses, when traveling by 

railroad, ten cents; when traveling otherwise than by railroad, fifteen cents; provided, that when more than one prisoner 

is removed at the same time, in addition 

to the foregoing, he shall only b,e allowed 

ten cents a mile for each additional 

prisoner." 

This office has heretofore held that the 

Comptroller Is authorized to Issue warrants for the 

payment of mileage fees incurred by a sheriff In the 

execution of "bench warrants" compelling the appearance of persons in a case pending before the court 

which issued the "bench warrant. Att'y Gen. Ops. 

2967 (1935), 3011 (1937), v-1008 (1950), and v-1030 

(1950) - 

On the other hand it has been held by this 

office that warrants may not be issued to pay mileage 

fees for the execution of "bench warrants" not Issued 

to compel the attendance of any person in a case or 

in any manner necessary to the enforcement of the 

court's jurisdiction of any person. Att'y Gen. Op. 

O-4087 (1941) and Letter Opinion to Honorable George 

H. Sheppard, Comptroller of Public Accounts, dated 

August 1, 1935. 

It is stated in the opinion dated August 1, 

1935: 

"You are advised that in my opinion 

the sheriff would be entitled to his fee 

as provided for in the statutes by reason 

of serving process of the court for going 
.’ . 

P 

Hon. Robert S. Calvert, page 3 (v-1488) 

to the penstentiary and returning this 

prisoner to,his county. ,He would~not be 

entitled to a fee for returning the prlsoner to the penitentiary as In my opinion the 

District Judge has no authority to issue 

a bench warrant or any other process ordering the sheriff to deliver a prisoner to 

any other jurisdictlon. Thl~s would be a 

matter for the penitentiary authorities 

to handle and It would be their duty to 

deliver this prisoner back to the penitentiary." 

In Attorney Gi?neral's Opinion O-4087 It was 

said: 

?'Nelther the caplas nor bench warrant 

is required to be rec.ognlzed by the Federal 

authorities who ho,ld the person as a Federal 

prisoner. Since they turned over to,,the,~ 

sheriff their prisoner, at which tlme~ It is 

presumed the arrest was made, he then became the prisoner of the sheriff whose duty 

extended no further than to convey him back 

to his own county jail or to bring him before 

the court issuing the bench warrant. lp~so . . 

far as the Federal authorities or the bench. 

warrant is concerned, requiring him to return ~. 

the prisoner to the Federal jail after-trial 

on the felony charge, fees for mileage so 

~lnourred are not provided for nor within the 

purview of the statute. 

"When we,look to the above subdivision 4 

of the article and attempt to apply it alone 

to the facts, the sheriff, though armed with 

both a caplas and bench warrant in going to 

the jail In Austin, was not traveling for 

the purpose of removing a prisoner. We cannot extend the meaning of the word 'prisoner' 

to include Federal prisoner, One outside the 

reach of the processes of a State court. 

Under the foregoing facts, subdivision 1 is 

to be construed with subdivision 4, and since 

the sheriff In going to the jail in Austin 

was traveling 'in going to the place of arrest,' he is allowed mileage on return with 

his prisoner as provided in subsectl6n 4, 

but not without further limltation~ Such 
Hon. Robert S. Calvert, p a g e 4 (v-1488) 

mileage fee a.p@ears by the'proyl,slons of 

subdivls'ion 1, to be retitric'ted by.the language 'for conveying the prisoner'orprisoners to jail. I ' The statute does not allow 

mileage for shy farther point or terminus 

after making an arrest and for removing a 

prisoner, than the jail over which the' 

sheriff is keeper. 

"Statutes prescribing fees for public 

officers' are strictly construed and the 

sheriff is entitled to such fees as statutes authorize. Blgham v. State, 27'5 S.W. 

147, judgment reversed (Corn. of Ape.), 280 

S.W. 1062. 

"It is therefore the opinion of 'this 

department that the sheriff, under the facts 

sent forth, is not entltled to mileage fees 

for returning the prisoner after trial on 

a felony charge 

Antonio." 

to the Federal jail in San 

The "bench warrant" in question was not Issued 

to enforce the court's jurisdiction of the prisoner or 

to compel his attendance in a case, but was issued for 

the purpose 'of having.whatis commonly called a lie 

detector test made upon him, to which the defendant and 

his attorney have agreed In writing," 

We how of no statute authorizing the State 

to oas mileage fees incurred in the execution of "bench 

warrants" of-this nature. You are therefore 

that the sheriff In question Is snot entitled 

age fees from the State In the Instant case. 

SUMMARY 

advised 

to mileUnder existing State statutes the 

State is not liable for mileage fees incurred by a sheriff in the execution of a 

"bench warrant' commanding the sheriff to 

take a defendant from a county having 
Hon. Robert S. Calvert, page 5 (v-1488) 

jurisdiction of the defendant to Austin 

for the purpose of taking a lie detector 

test at the Department of Public Safety. 

Yours very truly, 

APPROVED: PRICE DANIEL 

Attorney General 

J. C. Davis, Jr. 

County Affairs Division 

E. Jacobsop 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

JR:am