### DAN MORALES

ATTORNEY GENERAL 

### @ffice of ttp Zlttornep Qheral



## Btate ofQiIexa$ 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 ofadispute between the City ofOdessa (the “city”) andEctor 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, ifa 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-151(1984) and article 2.18 of the Code of Criminal Procedure both answer this question in the affirmative. Article 2.18 ofthe Code of Criminal Procedure provides that “[wlhen aprisoner is committed tojail by warrant from a magistrate or court, he shall be placed injail by the sheriff.” To permit such aprisoner to remain out ofjail “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 amagistrate 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 ofcommitment isdefined by article 16.20 ofthe Code ofCriminal 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 injail 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 countyjail solely for the violation ofa municipal ordinance

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“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, amunicipal wmt judge isamagistrate 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 ofthe requisites ofthe commitment order is “[w]hen the prisoner is sent out ofthe wunty where the prosecution arose, the warrant of wmmitmem shall state that there isno safejail in the proper county.” In our view, reading this requirement together with the reference to a“proper magistrate,” aproper magistrate isone who holds office in the proper wunty. Accordingly, we find no basis for the argument that municipaljudges may not issuewmmitment orders for persons accused ofclassAorBmisdemeanors. 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 1and 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-1009leadsto 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 lawsthat 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 bythe sheriffofthe 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 ofarticle 2.18, a violation of duty. The sheriff Cannotavoid the cost of his duty by refitsal to undertake it. Accordingly, once the commitment order is issued, the responsibility for maintaining these state lawprisoners devolves upon the county.

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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. Amunicipal court judge is a proper magistrate to issue such an order ifhe holds 051x. inthe proper county for venue purposes. Should the sheriffreikse 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 byJames Tourtelott Assistant Attorney General

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