Hon. George H. Sheppard Opinion No. O-4088 

Cg;EW&,ler of Public Re: Are the fees provided for 

Austin, Texas 

under H.B. 411, 47th Leg., a 

proper charge against the appropriation for the Govfrnor’s Law 

Enforcement Fund where the sheriff travels to a point outside 

the State of Texas and obtains 

and returns’ a prisoner to his 

county with or without requisiDear Sir: tion by the Governor? 

In your letter of October 1, 1941, requesting an opinion of this department, you state that you have a claim by the 

Sheriff of Oeona, Texas, for mileage, per diem, etc., for returning a prisoner from Silver City, New Mexico, incurred in 

traveling from the State line to Silver City, New Mexico, and 

returning thereto. You further state that the Sheriff traveled 

without requisition, presumably ‘on waiver, and desire this department to answer the following question: 

When a Sheriff travels to a point outside 

the State of Texas and obtains and veturns a prisoner to his county, with or without requisition by 

the governor, are the fees provided for under House 

Bill 411 a proper char.ge against the appropriation 

for the Governor t s Law Enforcement Fund?” 

Our attention is called to House Bill No. 411, Acts 

of the Regular Session of the 47th Legislature, which recent 

enactment raises your question. 

In order to answer the above question is it necessary 

that we examine the provisions of House Bill No. 411, 47th Le islature, which Act makes no reference to Articles 1005 and 100 8 

of Vernon’s Code of Criminal Procedure providing a method by 

which an officer or person is authorized to go outside the boundaries of the State in securing and#returning fugrtives from 

justice, with the latter Article authorizing th= officer or person so commissioned by the Governor to receive as compensation 

the actual and necessary traveling expenses. These statutes were 

involved in the case of Brightman, Sheriff, v. Sheppard, Comptroller (Corn. 4pp., Section B) 59 S.W.(2d) 112. .Referring to Article 

1006, the court there held that this statute has reference to the 

entire services of the agent in performing the delegated task, 

consequently denied a sheriff compensation for mileage under 
Hon. George H. Sheppard, page 2 (O-4088) 

Article 1030, Code of Criminal Procedure, for his services in 

going to the State line and returning therefrom with a fugitive 

from justice. The Brightman case is fully discussed in our 

Opinion No. 0-1016, addressed to you and approved July 6, 1939, 

it being pointed out therein that although Article 1006 has been 

amended since the case was decided the rule.announced by the 

court was not affected by the amendment. 

It appears that the Legislature for the biennium ending August 31, 1943, made an appropriation to the Executive Department for “payment of rewards and other expenses necessary 

for law enforcement” and “expenses for returning fugitives from 

justice;” and it is this appropriation to which you refer in 

-your request as the Wovernor’s Law Enforcement Fund.” 

House Bill No. 411, h7th Legislature, does not seek to 

amend the foregoing statutes. By Section 7 thereof, the Legislature has expressed its intention that this law Is cumulative 

of all other statutes on the subject, 

It will be noted that the title to House Bill.No. 411, 

in part, recites: 

“4n Act providing that any sheriff or deputy 

sheriff rho in the fulfillment of th duti s of u 

gffice leaves the counfg in which heeholdseoffice to 

secure and return a prisoner indicted for a criminal 

offe,nse of the grade of a felony shall be entitled 

to receive five cents (595) per mile for transportation, and that the distance traveled shall be the 

shortese practicable route between points; provided 

further that such sheriff or deputy sheriff shall 

receive a per diem sum not. to exceed Five Dollars 

($5) per day for meals and lodging; . . .I( 

Section 1 of theBill reads: 

“&very sheriff, or deputy sheriff, in any county 

of this State, who shall hereafter arrest, or cause 

to be arrested, any person, or persons ‘indict ad for a 

criminal offense of the grade of a felony, in the 

county where such officer is the duly acting sheriff, 

or deputy sheriff, shall be paid the sum of five cents 

(se) per mile from the state line and return thereto, 

gl one. the nearest cracticable r ute. to the ooint 

3b * C ers 

plaied under arrest, 

r wil 

and in addition thereto, suei officer, or officers, shall be paid, not to exceed Five 

Dollars ($5) per day, per person, for hotel bills, 
Hon. George A. Sheppard, page 3 (O-4088) 

meals and other expenses necessarily contracted 

in the performance of such official duty.” 

(Underscoring ours) 

‘Section 2 of the Act directs the Comptroller of Public 

Accounts to pay out ~of any fund or funds provided for such purpose, such expense upon approval of the account by the District 

Judge, etc.. Section 3 authorizes the commissioners1 court to 

pay the account ins the event there are ,no funds available belonging: to the State. Section 4. appears to cover substantially the 

same matter as Section 3 except applicable to fee counties. 

There are additional sections to the Act not necessary to mention. 

As we construe House Bill No. 411, particularly SPctinn 

1. ,it provides solely for the payment of the five cents (5Q) per 

m i le traveling and other expeases necessarily contracted and incurred outside the boundaries of the State of Texas. While the 

Act‘ .characterizes this expense to be’ paid as contracted in the 

perf brmanc f uch official duty~, the %ot does not ‘expressly or 

by implica~i& iuthorize the sheriff or deputy sheriff to go outside the boundary of the State in the performance of his official 

,duty normake it his, duty to do so. It plainly attempts to 

recognize his going without reference to Articles 1005 and 1006 

of the Code of Criminal Procedure, as an official dutv. 

We’ are not here’concerned with the question of whether 

or not~.the Legislature may authorize such traveling outside the 

State ~as.a part of,;the sheriff’s off’icial duties. The fact remains that; the. law, presently written,, does not do so. This department held in our Opinion No,. o-1590, rendered to Honorable Tom 

iovE;;;h3 County, ‘%dit or., McLennan County, Texas, and approved 

, 1939,. that a sheriff would not have authority to go 

beyond the border of. this State and return a prisoner without 

first obtaining requisition as provided in kticles 1005 and 

1006, Vernon’s Annotated Code of Criminal Procedure. 

‘The fact that kicles ,1005,‘and i006 of the Code provides~ the, method and compensation for such services in going after and ,returning. a ,fugitive, from justice, such constitutes a 

legislative ,recognition of long standing against such authority, 

as attempted ‘to be recagnized inHouse Bill No. 411, of t,he sheriff acting in his official cap~acity or performing official duties outside the ~boundaries of the State. It. has been stated 

that when the law confers upon a person powers; that .he, as a natural person, does not posse~ss, that power cannot accompany his 

person b~eyond the boundaries of the sovereignty which has conferred the power’ and’ although ‘the’ Legislature may require or authorize.certain official acts to be ~done~ beyon~d the State’s limits, 

: such acts’are done~ by express authority or permission, and the 

power to perform them outside the territorial jurisdiction of the 
Hon. George H. Sheppard, page 4 (O-4088) 

State is not to be implied. 

46 C.J. p. 1032. 

Meohem, Public Officers, p. 332; 

The title of the Act in questioa gives no notice 

whatever of any service or traveling expense payable for service 

rendered outside the State’s boundaries to which the provisions 

in the body of the Act relate. On the contrary, it gives ‘notice 

that such expense is allowed and shall be paid to one, who at 

the time, is engaged “in the fulfillment of the duties of his 

office.” 

Section 35, Article III, Constitution of Texas, reads: 

“No bill, . . . shall contain more than one subject, which shall be expressed in its title. But if 

any subject shall be embraced in an act, which shall 

not be expressed in the title, such act shall be void 

.only as to so much thereof, as shall not be so expressed.” 

lows: 

We quote from 39 Texas Jurisprudence, page 100, as folwðer a title is comprehensive or restrictive, 

expressed in general terms or particularity, it must 

be in agreement and, conformity, and not at variance 

with the subject of the legislation. . . A title is 

deceptive, false or misleading if it disguises the 

true purpose of the act end imports a subject different from that to which the act relates. And whether 

or not a title states,the general purpose of the act, 

it is misleading if it states specifia purposes in 

such manner as to conceal other purposes not stated,” 

The subject of House Bill No. 411 is plainly at variance with and conflicts with its title. Not only that, but ‘we 

think it plainly disguises and conceals the true purpose of the 

Act, is deceptive and misleading and in plain violation of the 

above constitutional provision. Bitter v. Bexas County, 11 

S.W.(2d) 163 (Com.App.) reversing 266 S.W. 224; Sutherland v. 

Board of Trustees, 261 S.W. 489, error refused; Ward Cattle & 

k&r; Co.8v. Carpenter, 109 Tex. 103, 200 S.W. 521, affirming 

. . . 

In view of the foregoing, it is the opinion of this 

Department that House Bill No. 411, Acts of the 47th Legislature, 

Regular Session, is unconstitutional and void, in violation of 

Section 35 of Article III of theConstitution of Texas, hence, 
Hon. George H. Sheppard, page 5 (O-4088) 

the fees and charges mentioned therein are not payable from 

any fund. 

Yours very truly 

ATTORNEY GENERAL. OF TEXAS 

By /s/ Wm. J. R. King 

Wm. J. R. King, Assistant 

APPROVED NOV 15, 1941 

/s/ Grover Sellers 

FIRST ASSISTANT ATTORNEY GENERAL 

APPROVED: W&NIO~NCO~!TTEE 

BY:. * 

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