April 4, 1950

Eon. Robert S. Oalvert Opinion Ho. V-1030. Camptrollerof Public Accounts Austin, Texas Re: The arrest and’mileagefees of a sheriff under the various circumstances

submitted.

Dear Sir%

Your request for an opinion is a8 follows:

“This Departmenthas received fee accomts from sheriffs,In countieswhere the other county officers In said county are paid on a fee basis, as follows:

‘1. A defendantwas convictedin M&alloch County of felony theft and sentencedto 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 directinghim to call upon the proper authoritiesof another county and pick up the defendantfrom 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 properlypayable? Would the mileage be payable if the servicehad been performed on a capias issued under the provisions of Article 779, C.C.P.?

“2. A defendantwas convictedIn Motleg County of attemptedarson and sentenced
one to four years in the penitentiaryand
was placed on probation.The sheriff claimed and was paid both arrest fee and mileage fee for servicesperformedbefore sentence
was given the defendant. The sheriff, subsequently,traveled 85 miles in arresting.

.

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

the defendantand qonvey$ngMa back to his county on a warrant for violationof the probation. The sheriff claW,'an arrest fee and mileage fee for thl.s service. Are elther of these fees properlypayable? Uould a mileage fee be payable if the servicehad been performed on a bench warrant?

'This Departmenthas long construeda case to'be disposed of as far as the payment of fees is concernedwhen a suspendedsentence Is rendered. In this connection,I am enclosingan opinion of your Departmentdated March 17, 1913, for gou~ convenience. I also am enclosinga copy of an opiniondated August 1, 1934, which deals with a stiilar situation.*

779, We quote the followingprovisionsof ArtZcles 781b, 1020 and 1030, V;C.C.P.%

"1: Upon the final convictionof the defendant of any other felang,pending the EUSpension of sentence,the court granting such suspensionshall 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 subsequentconviction **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 attackedby appeal OP othemlse, and no right of appeal shall exist to test the validity of the judgmentof conviction, sentenceupon which was suspended.

“ 2. Upon the final convictionof the defendant of any characterOF grade of the offenses of theft, embezzlement, swindling,oonversion, theft by ballee, or any fraudulent acquisitionof personalproperty,pending the suspensionof sentence,the court granting such suspension

my cause a caplas to issue for the arrest of the defendant,if he is notEon. Robert S. Calvert,page 3 (V-1030)

then in the custody of such court,and during the term of the courtmy pronounce sentence upon the original judgmentof conv%etion, and may cumulate the punishment of the first with the punishmentof any such subsequentconviction 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 construedto be mandatory;”

“Art. 781b

. . .
“Sec. 5. At any time during the period of probation such courtsmay Issue a warrant for violationof any of the conditionsof the probationand cause the defendant to be arrested. Any probationand psrole officer,police officer OP other officerwith power of arrest may arrest such defendantwithout a warrant upon the request of the judge of such courts; A probationerso arrestedmay be detained in the county jail OF other appropriate place of detentionuntil he can be taken before the court. Such probationand parole officer shall forthwithreport such arrest and detention to such courts and subtit in writing
a report showing in what manner the probationer has violatedhis 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 probationand 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 probationand parole officer, upon the written request of the sentenoIng judge, shall furnish such courts a report concerningsaid probationer, and such courts shall have authorityafter a hearing to continue or revoke probationand 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 originalRobert S; Calvert,page 4 (V-1030)

jurisdiction. Any probationer who removes himself from the State of Texas without permission of the court placingNm on probation

or the court to which jurisdiction he has been transferredshall be deemed and oonsldered a fugitive from justiceand shall be subject to extraditionas now providedby law. Ho part of the time that the defendantis on probation shall be consideredas any part of the time that he shall be sentencedto serve. The right of the probationerto appeal to the Court of CrlndnalAppeals for a review of the trial and conviction, as providedby law shall be accorded the probationerat the time he is placed on probation. When he is notified that his probation is revoked for violationof the conditionsof probationand he is aalled on to
serve a jail or penitentiarysentencehe 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 considereda. final disposition of that case, without the necessity of waltlag for the terminationof the period
or suspensionof sentence,' of probation

"Art. 1020 6 i

. 'Sheriffsand Constables servingprocess and attendingany exam&lng court in the examination of any felony case, shall be entitled to such fees as are fixed by law for elmilar servicesin 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 actuallyand necessarily traveled in going to the~place of arrest, and for conveyingthe 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 summoningor attachingwitnesses in the county where case Is pending. Providedno sheriff
or constableshall receive hsn the State any additicmalmileaRe for any subsequentarrest of a defendant In the same case. or in an??other oase in an examiningcourt or In any distrZctHon. Robert S. Calvert, Page 5 (v-1030)

court based UPOII

the same charne or uuon the
same criminalact. 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 duplicatehls fees for mlleane for maklnu arrests,with or withoutwarrant. 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 countywhere there have been cast at the precedingpresidentialelection less than 3000 votes, the sheriff OP constable shall receive the followingfees when the charge is a felony:

“1. FOP executingeach warrant of arrest
or capias, OP for plaking arrest without warrant, when authorizedby law, the sum of one dollar; and five cents for each mile actually and necessarilytraveled in going to place of arrest, **and** for conveyingthe prisoner or prisoners to jail, tileage, as provided for in subdivision4 shall be allowed:provided, that In counties that have a populationof less than forty thousand inhabitants, as shown by the precedingFederal oensus,thefollowing fees shall apply: FOP executingeach warrant of arrest or caplas, OP for making arrest without warrant,when authorizedby law, three dollars and fifteen cents for each tile actually and necessarilytraveled In going to place of arrest, and for conveyingprisoners 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 removinga prisoner, for each mile going and coming, Includingguards and all other expenses,when travelingby 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 additionalprisoner.'
Uhere a defendant convictedof a felony is granted a suspendedsentence and during the period of suapenslonhe is finally convictedof a felony or ~sozue other crlme named in Article 779 which requires the court to revoke the suspendedsentbnce,the court in which he was originally convictedis authorieedto i8- 8Ue a caplaa for Ns arrest under the provisionsof Article 779. If a defendant convictedof a felony 18 placed on probationand he later violatesany provisions of the probation,the aourt granting the probation is authorizedby 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 DistrictJudge for the sheriff to proceed to a certain place and get a prisonerwhom he has alreadyhad in custody and upon whom he has already served a caplas
or warrant of arrest. We quote the followlagfrom said opinion:

"A bench warrant is a common law process not definedby 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 sometimesused to bring a convict confinedin the penitentiaryto 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 SUbdiviBfon1 of Article 1029, but it is merely an order by the DistrictJudge in ca8es such as those submitted In your question for the sheriff to proceed to a certainplace and get a prisoner whom he has alreadyhad 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 ordinarywarrant of arrest directing the sheriff to arrest the person namedHon. Robert S. Calvert,page 7 (V-1030)

thereinwhere 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 sherifffor 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 :
"Appellantexcepted 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 contendedthat It was not competent for the state to do this. There is nothing in this contention. While we know of no procedure authorizedby legislationto bring a defendant from the penitentiaryto 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 complainthat the penitentiargauthoritiessurrendered him to the local authoritiesfor 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 confinedand under their charge, and
we understandthe prison authorities have provided a rule recognizingthe authority of diStrict judges to Issue wz$ts for prisonersconfined in the penitentiaryto be brought before the court for trial in any case that may be pending against them. This would seem to be sufficientauthority'to br%ng the prisonerbefore 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 asaIpatterof 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 officerhaving custody of the prisoner Ordering such officer or other person to deliver the prisoner to the sheriff for the purpose of conveyinghim to theEon. 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 officewas construingthe above quoted provisionsof Article 1020. The question
was whether or not said provisionsprohibitedthe payment of mileage fee8 to a sheriffwho executesa 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 prohibitioncontainedin Article 1020 wa8 not l-ted to examiningtrials 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 subsequentarrests of a defendantfor violationof his suspendedsentence 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 questionreveal that the sheriffreceived the bench wamant dlrectlng him to call upon the proper authoritiesof another county and pick up the defendantand conveyhim to the McCulloch County jail; As noted above, this does not constitutea warrant of arrest within the meaning of Article 1020, and since the prohibitioncontainedin Article 1020 applies to 'any subsequent arrest of a defendant in the 8ame case;" this prohibition would not amly. Furthermore,the prohibitionIn Article 1020 applies to "additional tileage." Therefore, the prohlbition does not apply where the sheriff In questionha8 not received,up to that time, an mileage, and you are -s advised that he Is entitled to ti cage fees provided for in subdivision4 of Article 1030 for removing a prisoner.

If a capiaswere issued rather than a bench warrant, the sheriffwould be entitled to mileage fees provided for in Article 1030 unless he has alreadybeen bald mlleage fees in a prior arrest In the same case or in an arrest arising out of the 8sIU0 criminaltransaction..

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

Section 5 of Article 781b above quoted, show8 that a revocationof probationfor a violationof any of the condition8of the probation is a continuationof the original case; Thereforean 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 sheriffhas received arrest fees and mileage fees for servicesperformedbefore the original sentence. Therefore, it is our opinion that the prOViSi0nSof Article 1020 prohibit the sheriff from receivingadditionalmlleage fees for making an arrest of the defendantand oonveying him back to his county on a warrent of arrest for violation of the probation.

If the servicereferred to had been performed
on a bench warrant rather than a warrant of arrest as contemplated

above, the sheriffwould be entitled to his mileage fees under the prOVi8iOnSof subdivision 4 of Article 1030 for the rea8onS stated in our answer to your first question.

The sheriffwho executesa bench warrant
on a defendantwhose suspended sentenceha8 been revoked or on a defendant on probation who has Violatedany of the conditionsof the probation, Is entitled to mlleage fees pursuant to the provisions of subdivision4 of Article 1030, V.C.C.P.,and the prohibition containedin Article 1020, V.C.C;PI, against the payment of an additionaltileage fee in the 8ame case or arising out of the same crlminal transactionI.8 not applicable. The sheriff who executesa capias on a defendantwhose suspended sentencehas been revokedwould 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 defendantviolatingprobationwhere the sheriffhas Pec8lVed arrest and ndleage fee8 prior to the o~iglnal sentencefor such subsequent arrest is an arrest arising out of theEon. 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 AttorneyGeneral

APPROVED:

J. C; Davis, Jr. County Affairs Division

Charles D; Mathews ExecutiveAsal.StEint

JRimw:bh Assistant