%‘lanE ATITORNE-V GENEOF TEXAS 

GEBALD C. M4NN Auwrx~~~.T&xAB 

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.+a-xxaanFI "a-Al. 

Hon. w. M. Tucker 

'county Attomsy 

Collingmvorth County 

Wallington, Texas 

Dear Sir: Ouinion No. O-1809 

f&r Would the sheriff end constable 

be entitled to mileage under the 

following statement of facts? 

Your request for an opinion on the above stated question has been 

received by this department. We quote fran your statement of facts 8s 

follows: 

"BRIEF AND STATEMENT OF FACTS 

"A complaint we.8 filed in my office, as County Attorney of Collingsrrorth 

ODunty, charging a resident citizen of Amarillo in Potter County, Texas, 

with swindling by endorsing and cashing a check in Callingsworth County, 

after he knew that pymsnt on the check had been stopped. The ohatge was 

a misdemeanor charge. A warrant was issued in Hellington, Collingsworth 

County, Texas for defendant's arrest and the sheriff and oonstable of 

this county each made a trip to Amarillo in Potter County, Texas for the 

purpose of making the arrest. But neither of the officers 1~s able to 

affect the arrest, as the defendant was either out of totan or secluding 

himself. 

"The warrant was then left with the Justice of the Peace at Amarillo in 

Potter County, Texas, and the record shows that the defendant was arrested 

by the sheriff of Potter County, Texas,,and taken before a Justice of the 

Peace in Amarillo, Texas, whereupon he gave bond for his appearanoe to 

answer the charge against him in the County Court of Collingsworth County, 

TCUIS. 

"The sheriff and the constable, each filed claims for mileage for each 

said trip, in the total amount of $52.50. Now, the defendant claims that 

the said sheriff and constable of Wellington in Collingsworth County, 

Texas are not entitled to any mileage3 whereas, the Collingsfforth County 

officers are naturally claiming that they are each legally entitled to 

this mileage. The defendant makes no objection to the fees of the Potter 

County sheriff. 

QUESTION: 

"Please let me have your opinion as to whether this mileage is correct, 
Hon. W. M. ticker, page 2 (O-1603) 

the nearest practical route from Wellington to Amarillo is approximately 

100 miles." 

As we understand your request, it is whether or not a sheriff or 

constable is entitled to mileage for unsuccessful trips made In search of a 

person charged with a misdemeanor xhen such parson is finally arrested. 

Hon. ?I. Grady Chandler, Assistant Attorney General, answered this 

question in the negative in a letter opinion addressed to W. G. Danier, under 

date of June 26, 1927. The facts in Mr. Chandler's opinion were very similar 

to the facts presented in your inquiry, exoept the person was oharged with a 

felony instead of e misdemeanor offense. 

VO~UIN 35, Cyc., page 1592, stetes the general rule es follows: 

"The general rule is that e sheriff has no right to mileage in attempting to 

8erve prooess or make en arrest which isnot actually or lawfully served or 

made, and even though he ultimately serves the process or makes the arrest 

he cannot oharge mileage for previous unsuooessful attempts." 

57 C. J. 1112 states the rule as follows: 

"The statutes sometimes allow a sheriff ocanpensation for endeavoring ~to serve 

process although he is une le to find end serve the party; but in the absence 

of en applicable provision to this effect, the sheriff is entitled to no fees 

for unsuooessful attempts to serve process." See Wegenr vs. Ramsey County, 

70 NW 166. 

There is no statutory provision in our statutes which authorizes 

the sheriff to colleot e mileage fee for an unsuccessful attempt to serve 

rpocess or a warrant of arrest, end this department has repeatedly held that 

P sheriff or constable is not entitled to mileage fees for suoh unsuccessful 

attempts. 

Article 234, Code of Criminal Prooedure, provides that in felony 

0888s where the defendant is arrested out of the cwnty vhere the offense was 

conrmitted, he shall be taken before e magistrate of the county where the 

offense is committed. IVhile Article 235, Code of Criminal Procedure, provides that in misdemeanor ceses where the defendant is arrested out of the 

oounty where the charge was filed, he shell be taken before a magistrate of 

the county where the arrest is made and that this magistrate shell take the 

bail end immediatelytransmit the bond to the court having jurisdiction of 

the offense. 

If the defendant failstD give bond under the provisions of Artiale 235, Code of Criminal Procedure, then by Article 236, Code of Criminal 

Procedure, the defendant is committed to the jail in the county where he is 

srrested, and the sheriff of the county in which the charge is pending is 

not given the ahthority to transport the defendant back to the county where 

the charge is pending until he has received notice fromthe sheriff of the 
Hon. W. M. Tucker, pege 3 (0-180s) 

county where the arrest is made that the defendant has filed to give bond 

and is confined in the jail of ths county where the arrest was made. Article 238, Code of Criminel Procedure, provides that if the proper officer of 

the county where the offense is alleged to have been committed does not demend end take charge of the prisoner within thirty (30) days frcmthe date 

he is committed, such prisoner shall be discharged from custody. 

In the case of Busan vs. State, 128 SW 388, the faots are that a 

resident of Bood County, after having committed a misdemeanor in aaid county, 

went to Atasoosa County. A warrant was sent to Atasoosa County where the 

defendant was arrested and placed in jail. The defendant asked to be allowed 

to give bond but this was refused by the sheriff of Atasoosg County on the 

ground that he had already telegraphed the sheriff of Hood County to oome 

after the defendant. The Hood County sheriff went after the defendant end 

returned him to Hood County here he was convicted. :$92.50 was taxed es the 

fees of the Hood County sheriff in going after the defendant end returning 

him to Hood County. The Court of Criminal Appals held that the sheriff 

was not entitled to his mileage charged. We quote from this case es follows: 

"Again, we believe that, under the statutes, the defendant ws tntitled to a 

reasonable time in whioh to make bond, end, the proof of this owe showing 

that he not only offered to make bond, but was willing to make bond, it 

would be en injustioe to charge and tax the defendant up with the expense of 

the sheriff in going after him end bringing him to the county of Hood." 

On Ootobsr 7, 1937, in an opinion written by Hon. James B. Eeff, 

Adsistant Attorney General, addressed to Ron. C.H. Talbot, bounty Attorney, 

Bastrop, Texas, this department held that a sheriff was not entitled to n&lcage fees going to another oounty to return a defendant charged with a misdemeanor in his home county, if the defendant was not returned by reason of 

giving bail as provided in Article 235, Code of Criminal Procedure. Under 

the statement of facts submitted in your inquiry, the defendant gave bond 

for his appesranoe to ensnw the oharge against him in the county court of 

Collingsworth County, Texas. 

Inview of the foregoing authorities, you we respectfully advised that it is the opinion of this department that neither them sheriff 

nor constable is entitled to any mileage fees for their unsuooessful attsmpts to servs prooess or make an arrest which was not actually or lewfully served or made. 

Trusting that the foregoing fully enswers your inquiry, we remain 

Very truly yours 

APPRCX'ED JAN 11, 1940 

/*I W.F. Moore 

FIRST ASSISTANT ATTOBXEY GENERAL 

ATTORNEY GENERAL OFlEXAS 

ay /s/ Ardall Willttams 

AWtAWregw 

APPIKXED: Opinion Committee 

By BWB Chairmen 

Ardell Williams 

Assistant