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# ATITORNE-V GENEOF TEXAS

GEBALD C. M4NN Auwrx~~~.T&xAB .l .+a-xxaanFI

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Hon. w. M. Tucker 'countyAttomsy CollingmvorthCounty Wallington, Texas

Dear Sir: OuinionNo. O-1809 f&r Would the sheriffend constable be entitled to mileage under the following statement of facts?

Your request for an opinion on the above stated question has been receivedby this department. We quote fran your statementof facts 8s follows:

"BRIEFAND STATEMENT OF FACTS

"A complaintwe.8filed inmy office, as CountyAttorney of Collingsrrorth ODunty, charging a resident citizen ofAmarillo in Potter County,Texas, with swindlingby endorsing and cashinga check in CallingsworthCounty, after he knew that pymsnt on the check had been stopped. The ohatgewas 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 ofmaking the arrest. But neither of the officers 1~s able to affect the arrest, as the defendantwas either out of totan or secluding himself.
"Thewarrant 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 inAmarillo, Texas, whereupon he gave bond for his appearanoe to answer the charge against him in the County Court of CollingsworthCounty, TCUIS.
"The sheriffand the constable, each filed claims formileage for each said trip, in the total amount of $52.50. Now, the defendant claims that the said sheriff and constable of Wellington in CollingsworthCounty, Texas are not entitledto anymileage3 whereas, the Collingsfforth County officers are naturally claiming that they are each legally entitled to thismileage. Thedefendantmakes no objection to the fees of the Potter County sheriff.
QUESTION:

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

the nearest practical route fromWellington to Amarillo is approximately 100miles."

As we understandyour request, it is whether or not a sheriffor constable is entitled tomileage for unsuccessful trips made In search of a person chargedwith a misdemeanorxhen 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 personwas ohargedwith a felony instead of e misdemeanor offense.

VO~UIN 35, Cyc., page 1592, stetes the general rule es follows:
"The general rule isthat e sheriffhas no right to mileage in attemptingto 8erve prooess or make en arrestwhich isnot actually or lawfully served or made, and even though he ultimately serves the process ormakes the arrest he cannot ohargemileage for previousunsuooessful attempts."

57 C. J. 1112 statesthe rule as follows:

"The statutes sometimes allow a sheriff ocanpensation for endeavoring~toserve 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 statutoryprovision in our statuteswhich authorizes the sheriff to colleot e mileage fee for an unsuccessful attemptto 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 0888swhere the defendant is arrested out of the cwnty vhere the offensewas conrmitted,he shall be taken before e magistrate of the countywhere the offense is committed. IVhile Article 235, Code of Criminal Procedure, provides that inmisdemeanor ceseswhere the defendant is arrested out of the oountywhere the chargewas filed, he shell be taken before a magistrate of the countywhere the arrest is made and that thismagistrate 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 CriminalProcedure, then by Article 236, Code of Criminal Procedure,the defendant is committed to the jail in the countywhere he is srrested, and the sheriff of the county inwhich the charge is pending is not given the ahthority to transportthe defendant back to the countywhere the charge is pending until he has receivednotice fromthe sheriff of theHon. W. M. Tucker,pege 3 (0-180s)

countywhere the arrest ismade that the defendant has filed to give bond and is confined in the jail of ths countywhere the arrest was made. Article 238, Code of CriminelProcedure, provides that if the proper officer of the countywhere the offense is alleged to have been committeddoes not demend end take charge of the prisonerwithin 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 amisdemeanor in aaid county, went to Atasoosa County. A warrant was sent to Atasoosa Countywhere the defendantwas arrested and placed in jail. The defendant asked to be allowed to give bond but this was refusedby the sheriff of Atasoosg County on the ground that he had already telegraphed the sheriffof Hood County to oome after the defendant. The Hood County sheriffwent after the defendant end returned him to Hood Countyhere 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 CriminalAppals held that the sheriff
was not entitled to hismileage charged. We quote from this case es follows: "Again,we believe that, under the statutes, the defendant ws tntitled to a reasonabletime in whioh tomake bond, end, the proof of this owe showing that he not only offeredto make bond, but was willing tomake bond, it would be en injustioe to charge and tax the defendantup 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. JamesB. Eeff, Adsistant Attorney General, addressed to Ron. C.H. Talbot, bountyAttorney, Bastrop, Texas, this departmentheld that a sheriffwas not entitled to n&lcage fees going to another oounty to return a defendant chargedwith amisdemeanor in his home county, ifthe defendant was not returnedby 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 CollingsworthCounty, Texas.

Inview of the foregoing authorities,you we respectfullyadvised that it is the opinion of this department that neither themsheriff
nor constable is entitled to anymileage 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 enswersyour inquiry,we remain
Very truly yours APPRCX'EDJAN 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