DAN MORALES 

ATTORNEY GENERAL 

@ffice of ttp Zlttornep Qheral 

Btate of QiIexa$ 

Janltaty 9,199s 

Honorable John T. Montford 

Chair 

Fiice committee 

Texas State Serrate 

P.O. Box 12068 

Austin, Texas 78711 

Opinion No. DM-3 13 

Re: Whether a county is required to accept 

warrantless arrestees from a municipal police 

department, and related questions (RQ-606) 

Dear Senator Montford: 

In view of a dispute between the City of Odessa (the “city”) and Ector County (the 

“county”) as to who is responsible for incarcerating certain persons arrested by the city 

police for the violation of state criminal provisions, you have asked this office a series of 

questions. 

You ask first whether, if a city police officer arrests a person for violating a state 

crimkal statute and a magistrate issues a commitment order for the person, the county is 

required to incarcerate the person. In our view, Attorney General Opinion JM-15 1 (1984) 

and article 2.18 of the Code of Criminal Procedure both answer this question in the 

affirmative. 

Article 2.18 of the Code of Criminal Procedure provides that “[wlhen a prisoner is 

committed to jail by warrant from a magistrate or court, he shall be placed in jail by the 

sheriff.” To permit such a prisoner to remain out of jail “is a violation of duty on the part 

of [the] sheriff?’ Accordingly, Attorney General Opinion JM-151 held that a county jail 

was required to accept state statute violators atIer a magistrate had committed them to the 

jail. JM-151, at 2.’ 

Your second question concerns whether a municipal judge may issue such a 

commitment order, particularly when the offense charged is a class A or B misdemeanor. 

The warrant of commitment is defined by article 16.20 of the Code of Criminal Procedure, 

which further stipulates its requisites. According to article 16.20, “A ‘commitment’ is an 

order signed by the proper magistrate directing a sheriff to receive and place in jail the 

person so committed.” 

‘Attorney General Opinion Jh4-151 did not overrule, and this opinion should not be construed to 

overrule, Attorney General Opinion MW-52 (1979), which held that a sheriff has no duty to contine a 

person in the county jail solely for the violation of a municipal ordinance 

p, 1665 
Honorable John T. Montford - Page 2 (DM-3 13) 

“Magistrate” is defmed by article 2.09 of the Code to include, inter ah-z, “the 

justices of the peace, the mayors and recorders and the judges of the city courts of 

inwrporated cities or towns.” Acwrdingly, a municipal wmt judge is a magistrate for the 

purposes of article 16.20. 

It has been suggested that municipal court judges, however, are not “proper” 

magistrates, and therefore lack power to issue enforceable commitment orders, because 

they cannot try class A and B misdemeanors. The term is not defined in the statute. 

However, reading article 16.20 in its entirety, we are satisfied that “proper” refers to 

venue only. One of the requisites of the commitment order is “[w]hen the prisoner is sent 

out of the wunty where the prosecution arose, the warrant of wmmitmem shall state that 

there is no safe jail in the proper county.” In our view, reading this requirement together 

with the reference to a “proper magistrate,” a proper magistrate is one who holds office in 

the proper wunty. Accordingly, we find no basis for the argument that municipal judges 

may not issue wmmitment orders for persons accused of class A or B misdemeanors. 

You ask, finally, who is responsible for the cost of incarceration if a municipal 

court judge issues a wmmitment order and the sheriff &&es to take custody of the 

prisoner. We believe that Attorney General Opinion JM-15 1 and article 2.18 answer this 

question as well. Once a magistrate has issued a wmmitmem order, the duty to 

incarcerate the prisoner, along with the necessary cost incident thereto, falls upon the 

shelifr 

Attorney General Opinion JM- 1009 leads to the same conclusion. In that opinion, 

the question was posed whether a city or a county was responsible for the maintenance of 

prisoners who had violated city tra5c laws that implementw article 6701d, V.T.C.S. This 

05ce answered: 

Because persons incarcerated for violating municipal tragic ordinances that implement article 6701d are considered state statute 

violators, the city is relieved of its obligation to provide for the 

maintenance. of such prisoners once they are accepted for 

incarceration by the sheriff of the county. 

N-1009 (1989) at 6. 

In your hypothetical, the sheriff has not accepted the prisoners. However, the 

refusal to do so is not an exercise of discretion, but is rather, according to the plain 

language of article 2.18, a violation of duty. The sheriff Cannot avoid the cost of his duty 

by refitsal to undertake it. Accordingly, once the commitment order is issued, the 

responsibility for maintaining these state law prisoners devolves upon the county. 

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Honorable John T. Montford - Page 3 (DM-3 13) 

SUMMARY 

If a city police officer arrests a person for violating a state 

staMe and a magistrate issues a commitment order for the prisoner, 

the county is required to incarcerate the prisoner. A municipal court 

judge is a proper magistrate to issue such an order if he holds 051x. 

in the proper county for venue purposes. Should the sheriff reikse to 

take custody of the prisoner, the wunty is responsible for the 

prisoner’s maintenance. 

DAN MORALES 

Attorney General ofTexas 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by James Tourtelott 

Assistant Attorney General 

p. 1667