April 4, 1950 

Eon. Robert S. Oalvert Opinion Ho. V-1030. 

Camptroller of Public 

Accounts 

Austin, Texas 

Re: The arrest and’mileage fees 

of a sheriff under the various circumstances submitted. 

Dear Sir% 

Your request for an opinion is a8 follows: 

“This Department has received fee accomts from sheriffs, In counties where the 

other county officers In said county are 

paid on a fee basis, as follows: 

‘1. A defendant was convicted in M&alloch County of felony theft and sentenced to 

five years suspended sentence. The Sheriff 

made claim for $3.00 arrest fee and was paid 

that amount, no mileage fees were earned or 

clalmed. The court subsequently revoked the 

suspended sentence, and the sheriff received 

a bench warrant from the court directing him 

to call upon the proper authorities of another county and pick up the defendant from the 

jail there and convey him to the McCulloch 

County jail. The sheriff nov makes a claim 

for conveyance mileage under the provisions 

of Article 1030, C.C.P. for this service. Is 

this mileage properly payable? Would the 

mileage be payable if the service had been 

performed on a capias issued under the provisions of Article 779, C.C.P.? 

“2. A defendant was convicted In Motleg County of attempted arson and sentenced 

one to four years in the penitentiary and 

was placed on probation. The sheriff claimed and was paid both arrest fee and mileage 

fee for services performed before sentence 

was given the defendant. The sheriff, subsequently, traveled 85 miles in arresting 
. 

. 

Hon. Robert S. Calvert, page 2 (V-1030) 

the defendant and qonvey$ng Ma back to his 

county on a warrant for violation of the 

probation. The sheriff claW,'an arrest fee 

and mileage fee for thl.s service. Are elther of these fees properly payable? Uould a 

mileage fee be payable if the service had 

been performed on a bench warrant? 

'This Department has long construed a 

case to'be disposed of as far as the payment 

of fees is concerned when a suspended sentence Is rendered. In this connection, I am 

enclosing an opinion of your Department dated March 17, 1913, for gou~ convenience. I 

also am enclosing a copy of an opinion dated 

August 1, 1934, which deals with a stiilar 

situation.* 

779, 

We quote the following provisions of ArtZcles 

781b, 1020 and 1030, V;C.C.P.% 

"1: Upon the final conviction of the defendant of any other felang, pending the EUSpension of sentence, the court granting such 

suspension shall cause a oaplas to issue fop 

the arrest of the defendant if he is not then 

In the custody of such court, and during a 

term of the court, shall pronounce sentence 

upon the original judgment of conviction, and 

shall cumulate the ptuzisbment of the first 

with the punlshinent of any subsequent conviction OP ConvIctlons, and in such cases no new 

trial shall be granted in the first oonvlction, HOP shall the validity OP f@ality of 

the first convlztlon be attacked by appeal OP 

othemlse, and no right of appeal shall exist 

to test the validity of the judgment of conviction, sentence upon which was suspended. 

“2. Upon the final conviction of the defendant of any character OF grade of the offenses of theft, embezzlement, swindling, oonversion, theft by ballee, or any fraudulent 

acquisition of personal property, pending the 

suspension of sentence, the court granting 

such suspension my cause a caplas to issue 

for the arrest of the defendant, if he is not 
Eon. Robert S. Calvert, page 3 (V-1030) 

then in the custody of such court, and during 

the term of the court my pronounce sentence 

upon the original judgment of conv%etion, and 

may cumulate the punishment of the first with 

the punishment of any such subsequent conviction or convictions, and in such cases no new 

trial shall be granted in the first convlceon. The term kay, t as herein used, shall 

not be construed to be mandatory;” 

“Art. 781b . . . 

“Sec. 5. At any time during the period 

of probation such courts may Issue a warrant 

for violation of any of the conditions of the 

probation and cause the defendant to be arrested. Any probation and psrole officer, police officer OP other officer with power of 

arrest may arrest such defendant without a 

warrant upon the request of the judge of such 

courts; A probationer so arrested may be detained in the county jail OF other appropriate 

place of detention until he can be taken before the court. Such probation and parole officer shall forthwith report such arrest and 

detention to such courts and subtit in writing 

a report showing in what manner the probationer has violated his probation. Thereupon, the 

court shall cause the Uefendant to be brought, 

before it and, after a heaping without a jury, 

may continue or revoke the probation and shall 

in such case proceed to deal with the case as 

If there had been no probation. If the defendant is arrested In a oounty or district in 

the State of Texas other than that In which he 

was convicted, the probation and parole officer, upon the written request of the sentenoIng judge, shall furnish such courts a report 

concerning said probationer, and such courts 

shall have authority after a hearing to continue or revoke probation and shall in such 

case proceed to deal with the case as if there 

had been no probation. In such case, the 

clerk of the court in which the order of revocation is Issued shall forward a transcript 

of such order to the clerk of the court of 

original jm3sdiction, and the clerk of that 

court shall proceed as if the order of Fevocatlon had been Issued by the court of original 
Robert S; Calvert, page 4 (V-1030) 

jurisdiction. Any probationer who removes 

himself from the State of Texas without permission of the court placing Nm on probation 

or the court to which jurisdiction he has 

been transferred shall be deemed and oonsldered a fugitive from justice and shall be subject to extradition as now provided by law. 

Ho part of the time that the defendant is on 

probation shall be considered as any part of 

the time that he shall be sentenced to serve. 

The right of the probationer to appeal to the 

Court of Crlndnal Appeals for a review of the 

trial and conviction, as provided by law shall 

be accorded the probationer at the time he is 

placed on probation. When he is notified that 

his probation is revoked for violation of the 

conditions of probation and he is aalled on to 

serve a jail or penitentiary sentence he may 

appeal the revocation." 

*Sec.. 31. For the purpose of determining 

when fees are to be paid to any officer or offloe, the placing of the defendant on probation shall be considered a. final disposition 

of that case, without the necessity of waltlag 

for the termination of the period 

or suspension of sentence,' 

of probation 

"Art. 1020 6 i . 

'Sheriffs and Constables serving process 

and attending any exam&lng court in the examination of any felony case, shall be entitled to such fees as are fixed by law for elmilar services in nilsdemeanor cases in County 

Court to be 

p" 

id b the State, not to exceed 

Four and To 100 ($x+00) Dollars ¶.n any one 

case, and mileage actually and necessarily 

traveled in going to the~place of arrest, and 

for conveying the prisoner or prisoners to 

jail as provided in Articles 1029 and 1030, 

Code of Criminal Procedure, as the facts may 

be, but no mileage whatever shall be paid for 

summoning or attaching witnesses in the county where case Is pending. Provided no sheriff 

or constable shall receive hsn the State any 

additicmal mileaRe for any subsequent arrest 

of a defendant In the same case. or in an?? other oase in an examining court or In any distrZct 
Hon. Robert S. Calvert, Page 5 (v-1030) 

court based UPOII the same charne or uuon the 

same criminal act. or arowina out of the same 

criminal transaction. whether the am-eat is 

made with or wtthout a warrant* or before or 

after izrdictment. and in no event shall he be 

allowed to duplicate hls fees for mlleane for 

maklnu arrests, with or without warrant. or 

when two or more warrants of arrest or caDiases are served or could have been served on 

‘fbe same defendant on any one dae.” (Empbasls 

added. I 

“Art. 1030 . . . 

“In each county where there have been 

cast at the preceding presidential election 

less than 3000 votes, the sheriff OP constable shall receive the following fees when the 

charge is a felony: 

“1. FOP executing each warrant of arrest 

or capias, OP for plaking arrest without warrant, when authorized by law, the sum of one 

dollar; and five cents for each mile actually 

and necessarily traveled in going to place of 

arrest, and for conveying the prisoner or prisoners to jail, tileage, as provided for in 

subdivision 4 shall be allowed: provided, that 

In counties that have a population of less 

than forty thousand inhabitants, as shown by 

the preceding Federal oensus,the following 

fees shall apply: FOP executing each warrant 

of arrest or caplas, OP for making arrest 

without warrant, when authorized by law, 

three dollars and fifteen cents for each tile 

actually and necessarily traveled In going to 

place of arrest, and for conveying prisoners 

to jail, mileage as provided for in subdivision 4 shall be allowed; and one dollaf; shall 

be allowed for the approval of a bond. 

“4. For removing a prisoner, for each 

mile going and coming, Including guards and 

all other expenses, when traveling by railroad, ten cents; when traveling otherwise 

than by railroad, fifteen cents; provided, 

that when more than one prisoner Is removed 

at the same time, in addltlon to the forego- 
Hon. Robert S; Calvert, page 6 (V-1030) 

ing, he shall only be allowed ten cents a 

mile for each additional prisoner.' 

Uhere a defendant convicted of a felony is 

granted a suspended sentence and during the period of 

suapenslon he is finally convicted of a felony or ~sozue 

other crlme named in Article 779 which requires the 

court to revoke the suspended sentbnce, the court in 

which he was originally convicted is authorieed to i8- 

8Ue a caplaa for Ns arrest under the provisions of 

Article 779. If a defendant convicted of a felony 18 

placed on probation and he later violates any provisions 

of the probation, the aourt granting the probation is 

authorized by Article 781b to issue a warrant for hi8 

arrest. 

In Attorney General Opinion Ho. 3011, dated 

December 13, 1937, and approved in Opinion 190, V-1008, 

it was held that a bench warrant is not contemplated as 

a warrant of arrest OP capias as provided in subclivl8ion 1 of Article 1029, but it is merely m order by 

the District Judge for the sheriff to proceed to a certain place and get a prisoner whom he has already had 

in custody and upon whom he has already served a caplas 

or warrant of arrest. We quote the followlag from said 

opinion: 

"A bench warrant is a common law process 

not defined by the Statute of Texas, and although the courts In Oxford va Berry, 170 B.W. 

83, 204 MZch. 197, and in Rx Parte Lowe, 251 

S.W. 506, have defined a bench warrant as a 

warrant of arrest, they further say that it is 

sometimes used to bring a convict confined in 

the penitentiary to trial In another case, and 

we are of the opinion that a bench warrant 18 

not contemplated as being a warrant of arrest 

OP capias as provided in SUbdiviBfon 1 of Article 1029, but it is merely an order by the 

District Judge in ca8es such as those submitted In your question for the sheriff to proceed to a certain place and get a prisoner 

whom he has already had in custody and upon 

whom he has already served the capias or warrant of arrest and returned the body of such 

prisoner to the court ls8ting the order. It 

is not an ordinary warrant of arrest directing the sheriff to arrest the person named 
Hon. Robert S. Calvert, page 7 (V-1030) 

therein where ever found, but on the other 

hand it is an order directed to the officer 

or person having custody of the prisoner ordering such officer or other person to deliver the prisoner to the sheriff for the 

purpose of convepng him to the court issuing the warrant. 

In Gaines vi State, 53 SiW. 623 (Tex. Calm. 

t in discussing the effect of a benah 

: 

"Appellant excepted to the action of the 

court in hav him brought from the penitentiary at Rus e being confined there onanother Case) t0 stand hi8 trial in this case, 

It being contended that It was not competent 

for the state to do this. There is nothing 

in this contention. While we know of no procedure authorized by legislation to bring a 

defendant from the penitentiary to scane court 

for trial in another 0888, yet there is no 

law to the contrary, and euoh has been the 

usual practice; and we fall to see how a defendant can be heard to complain that the penitentiarg authorities surrendered him to the 

local authorities for trial on some indictment 

pending against him. The legislature has authorized the penitentiary board to make certain rules in regard to the conduct of the 

convicts confined and under their charge, and 

we understand the prison authorities have provided a rule recognizing the authority of diStrict judges to Issue wz$ts for prisoners confined in the penitentiary to be brought before 

the court for trial in any case that may be 

pending against them. This would seem to be 

sufficient authority'to br%ng the prisoner before the court." 

Although a bench warrant may at Waes be wed 

as a warrant of arrest (Rx Parte Lowe, 251, SiW.506, Tex; 

Grim. 1923), it 18 OUP opinion, in view of the foregoing, 

that asaIpatter of practice the courts of this State do 

not use the bench warrant for the purpose of arrest but 

on the other hand it is used as an order directed to the 

person or officer having custody of the prisoner Ordering such officer or other person to deliver the prisoner 

to the sheriff for the purpose of conveying him to the 
Eon. Robert S. Calvert, page 8 (V-1030) 

court issuing the warrant. Therefore, a bench warrant 

as used by the OOUrt8 of this State is not a warrant of 

arrest,withfn the meaning of Article 1020, V.C.C.P. 

In Attorney General Opinion dated August 1, 

1934, to the Comptroller, this office was construing the 

above quoted provisions of Article 1020. The question 

was whether or not said provisions prohibited the payment of mileage fee8 to a sheriff who executes a capias 

under Article 819, V.C.C.P., which provide8 that a capias for the arrest of the defendant may be Issued where 

the Court of Criminal Appeal8 ha8 affirmed a conviction 

in a felony case; It wa8 held in this opinion that the 

prohibition contained in Article 1020 wa8 not l-ted to 

examining trials but applied to any subsequent arrest in 

the same case or growing out of the same arimlnal transaction whether the arrest was made before or after lndictment. 

Therefore, it is our opinion that the provisions of Article 1020 would apply to subsequent arrests 

of a defendant for violation of his suspended sentence 

OF probation, since it 18 an arrest in the same case or 

the arrest arises out of the 8am criminal transaction; 

The facts contained in your first question reveal that the sheriff received the bench wamant dlrectlng him to call upon the proper authorities of another 

county and pick up the defendant and convey him to the 

McCulloch County jail; As noted above, this does not 

constitute a warrant of arrest within the meaning of 

Article 1020, and since the prohibition contained in 

Article 1020 applies to 'any subsequent arrest of a defendant in the 8ame case;" this prohibition would not 

amly. Furthermore, the prohibition In Article 1020 

applies to "additional tileage." Therefore, the prohlbition does not apply where the sheriff In question ha8 

not received, up to that time, an mileage, and you are 

advised that he Is entitled to ti -scage fees provided for 

in subdivision 4 of Article 1030 for removing a prisoner. 

If a capias were issued rather than a bench 

warrant, the sheriff would be entitled to mileage fees 

provided for in Article 1030 unless he has already been 

bald mlleage fees in a prior arrest In the same case or 

in an arrest arising out of the 8sIU0 criminal transaction. 
. 

Hon. Robert S. Calvert, page 9 (V-1030) 

Section 5 of Article 781b above quoted, show8 

that a revocation of probation for a violation of any of 

the condition8 of the probation is a continuation of the 

original case; Therefore an arrest for violation of 

probation is an arrest arising out of the Same case or 

one growing out of the same criminal tranaaotion within 

the m8anlng of Article 1020. 

The facts in your second question show that the 

sheriff has received arrest fees and mileage fees for 

services performed before the original sentence. Therefore, it is our opinion that the prOViSi0nS of Article 

1020 prohibit the sheriff from receiving additional mlleage fees for making an arrest of the defendant and oonveying him back to his county on a warrent of arrest for 

violation of the probation. 

If the service referred to had been performed 

on a bench warrant rather than a warrant of arrest as 

contemplated above, the sheriff would be entitled to his 

mileage fees under the prOVi8iOnS of subdivision 4 of 

Article 1030 for the rea8onS stated in our answer to your 

first question. 

The sheriff who executes a bench warrant 

on a defendant whose suspended sentence ha8 

been revoked or on a defendant on probation 

who has Violated any of the conditions of the 

probation, Is entitled to mlleage fees pursuant to the provisions of subdivision 4 of Article 1030, V.C.C.P., and the prohibition 

contained in Article 1020, V.C.C;PI, against 

the payment of an additional tileage fee in 

the 8ame case or arising out of the same crlminal transaction I.8 not applicable. The sheriff who executes a capias on a defendant whose 

suspended sentence has been revoked would be 

entitlea to mileage fees provided for in subdivision 4 of Article 1030, unless he has already been paid mlleage fees in a prior arrest 

in th8 same 0888 or in an arrest arising out 

of the same criminal transaction; Th8 sheriff 

is not entitled to mileage fee8 for 811 arrest 

of the defendant violating probation where the 

sheriff has Pec8lVed arrest and ndleage fee8 

prior to the o~iglnal sentence for such subsequent arrest is an arrest arising out of the 
Eon. Robert S; Oaloert, page 10 (V-1030) 

fame criminal transaction. Arts: 779, 781b, 

1020 apd 1030, 

SiW.f506 (Tex. Crl8ii 

53 s;w. 623 (Taxi Grin. 

wo; 3011, dated D8Cemb8r 

ion.dated August 1; 1934, to the Cmtroll8r; 

A.@; opinion Bo. v-1008; 

Your8 very truly, 

PRICE WRIEL 

Attorney General 

APPROVED: 

J. C; Davis, Jr. 

County Affairs Division 

Charles D; Mathews 

Executive Asal.StEint 

JRimw:bh 

Assistant