July 

### 30, 1952

Hon. Robert S. Calvert Comptroller of Public Accounts Austin, Texas OpinionNo. V-1488
Re: Legality of payingmileage,fees to a sheriff for bringing a defendant in a murder case to Austin under a benchwarrant to take a lie detector test at the Department of Dear Sir: Public Safety.

Your request for an opinion reads in part as follows: "ThisDepartmenthas received a Dls-- :trict Court Fee Bill from the sheriff of Sutton County,:

a fee county, for taking a defendant on a benchwarrant in a murder case from Sonora to Austin, and return to Sonora. "Thedefendantwas indicted on September 4, 1951, on a murder charge. On November 29, 1951, the District Judge of the 112th JudicialDistrict 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 takewhat " 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 SuttonCounty, Texas, when the testwas completed. "ThisDepartmentrequests 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 eventyou hold these fees are Dayable,would each mile traveled in takingthedefendant to Austin, and returninghim 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-

"Forremoving a prisoner, for each mile going and comlng;includlng guards and all other expenses,when travelingby railroad, ten cents;when traveling otherwise than by railroad, fifteen cents; provided, thatwhen 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 officehas heretoforeheld that the Comptroller Is authorized to Issuewarrants for the payment of mileage fees incurredby a sheriff In the execution of "benchwarrants" compellingthe appearance of persons in a case pendingbefore the court which issued the "benchwarrant. Att'y Gen. Ops. 2967 (1935),3011 (1937),v-1008 (1950),and v-1030 (1950)- On the otherhand it has been held by this office that warrants may not be issued to pay mileage fees for the execution of "benchwarrants" not Issued to compel the attendance of any person in a case or in any manner necessary to the enforcement of the court's jurisdictionof 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 sheriffwould be entitled to his fee as provided for in the statutesby reason of servingprocess of the court for going.’

.

P Hon. Robert S. Calvert, page 

### 3 (v-1488)

to the penstentiaryand returning this prisoner to,his county. ,Hewould~not be entitled to a fee for returning the prlsoner to the penitentiaryas In my opinion the District Judgehas 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 penitentiaryauthorities to handle and It would be their duty to deliver this prisonerback to the penitentiary."

In Attorney Gi?neral's Opinion 

### O-4087It was said:
?'Neltherthe caplas nor benchwarrant is required to be rec.ognlzed by the Federal authoritieswho ho,ldthe person as a Federal prisoner. Since they turned over to,,the,~ sheriff their prisoner,at which tlme~It is presumed the arrestwas made, he then became the prisoner of the sheriffwhose duty extendedno further than to convey him back to his own county jail or to bring him before the court issuing the benchwarrant. lp~so

.. far as the Federal authoritiesor the bench. warrant is concerned,requiringhim to return ~. the prisoner to the Federal jailafter-trial on the felony charge, fees for mileage so ~lnourred

are not provided for nor within the purview of the statute. "Whenwe,look to the above subdivision 4 of the article and attempt to apply it alone to the facts, the sheriff, though armedwith both a caplas and benchwarrant 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 construedwith subdivision 4, and since the sheriff In going to the jail in Austin was traveling 'ingoing to the place of arrest,' he is allowedmileage on return with his prisoner as provided in subsectl6n 4, but not without further limltation~ SuchHon. Robert S. Calvert, p g a e 

### 4 (v-1488)

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

1, to be retitric'ted by.the language 'forconveying the prisoner'orprisoners to jail.I 'The statute does not allow mileage forshy fartherpoint or terminus after making an arrest and for removing a prisoner, than the jail overwhich the' sheriff is keeper.
"Statutesprescribing fees for public officers'

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

### 147, judgmentreversed (Corn. of Ape.), 280 S.W. 1062.
"It is therefore the opinion of 'this department that the sheriff,under the facts sentforth, is not entltled to mileage fees for returning the prisoner after trial on a felony charge Antonio." to the Federal jail in San

The "benchwarrant" in questionwas not Issued to enforce the court's jurisdictionof the prisoner or to compel his attendance in a case, but was issued for the purpose 'ofhaving.whatis commonly called a lie detector test made upon him, to which the defendant and his attorneyhave agreed Inwriting,"

We how of no statute authorizing the State to oas mileage fees incurred in the execution of "bench warrants" of-thisnature. You are therefore that the sheriff In question Issnotentitled 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 "benchwarrant' commanding the sheriff to take a defendant from a county havingHon. Robert S. Calvert, page 5 

### (v-1488)

jurisdictionof the defendant to Austin for the purpose of taking a lie detector test at the Department of Public Safety.

Yours very truly,
APPROVED: PRICEDANIEL Attorney General J. C. Davis, Jr. County Affairs Division

E. Jacobsop Reviewing Assistant
Charles D. Mathews First Assistant
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