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 Fundwhere the sheriff travels to a point outside the State of Texas andobtains and returns’ a prisoner to his county with or without requisiDear Sir: tion by the Governor?

In your letter of October 1, 1941, requesting anopinion 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, NewMexico, incurred in traveling from the State line to Silver City, NewMexico, and returning thereto. Youfurther state that the Sheriff traveled without requisition, presumably ‘onwaiver, and desire this department to answer the following question:

When a Sheriff travels to a point outside the State of Texas and obtains andveturns 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 Governorts LawEnforcement 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 HouseBill No. 411, 47th Le islature, which Act makesno reference to Articles 1005 and 1008 of Vernon’s Code of Criminal Procedure providing amethod 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 andnecessary 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 underHon. George H. Sheppard, page 2 (O-4088)

Article 1030, Code of Criminal Procedure, for his services in going to the State line andreturning therefrom with a fugitive from justice. TheBrightman 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 amendedsince 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, madean 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 LawEnforcement Fund.”

House Bill No. 411, h7th Legislature, does not seek to amendthe foregoing statutes. BySection 7 thereof, the Legislature has expressed its intention that this law Is cumulative of all other statutes onthe subject,

It will be noted that the title to HouseBill.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 andreturn 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, andthat the distance traveled shall be the shortese practicable route between points; provided further that such sheriff or deputy sheriff shall receive aper diem sumnot.to exceed Five Dollars ($5) per day for meals andlodging;

. . .I( Section 1 of theBill reads:

“&very sheriff, or deputy sheriff, in any county of this State, whoshall hereafter arrest, or cause to be arrested, anyperson, 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 sumof five cents (se) per mile from the state line and return thereto, glone.the nearest cracticable r ute. to the ooint 3b * C ers plaied under arrest, r wil andin 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 andother 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 ~ofany 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 insthe event there are ,nofunds available belonging: to the State. Section 4.appears to cover substantially the samematter as Section 3 except applicable to fee counties. There are additional sections to the Act not necessary to mention.

Aswe construe House Bill No. 411, particularly SPctinn 1. ,it provides solely for the payment of the five cents (5Q) per mle i 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 perfbrmanc 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 mayauthorize such traveling outside the State ~as.apart 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., McLennanCounty, Texas, and approved

, 1939,. that a sheriff would not have authority to go beyond the border of. this State andreturn a prisoner without first obtaining requisition as provided in kticles 1005 and 1006, Vernon’s Annotated Code of Criminal Procedure.

‘Thefact that kicles ,1005,‘and i006 of the Codeprovides~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 whenthe law confers upon a person powers; that .he, as a natural person, does not posse~ss, that power cannot accompanyhis person b~eyondthe boundaries of the sovereignty which has conferred the power’ and’although ‘the’ Legislature mayrequire or authorize.certain official acts to be ~done~ beyon~dthe State’s limits, :such acts’are done~by express authority or permission, andthe power to perform them outside the territorial jurisdiction of theHon. George H. Sheppard, page 4 (O-4088)

State is not to be implied. 

### 46C.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. Onthe contrary, it gives ‘notice that such expense is allowed and shall be paid to one, whoat the time, is engaged “in the fulfillment of the duties of his office.” Section 

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

“Nobill,

. . . 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 muchthereof, as shall not be so expressed.”

lows: Wequote from 

### 39Texas Jurisprudence, page 100, as folwðer a title is comprehensive or restrictive, expressed in general terms or particularity, it must be in agreement and,conformity, andnot at variance with the subject of the legislation.

. . Atitle 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. Andwhether or not a title states,the general purpose of the act, it is misleading if it states specifia purposes in such manneras to conceal other purposes not stated,” Thesubject 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 andmisleading andin 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, 

### 261S.W. 

### 489,error refused; WardCattle & 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 HouseBill No. 411, Acts of the 47th Legislature, Regular Session, is unconstitutional andvoid, in violation of Section 

### 35of 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.

OFTEXAS By/s/ Wm.J. R. King Wm.J. R. King, Assistant APPROVED

NOV

### 15, 1941 /s/ Grover Sellers FIRSTASSISTANT

ATTORNEY

GENERAL APPROVED:

W&NIO~NCO~!TTEE BY:. * WMK:L&l:wb