HOD. Perry L. Jones

CountyAttorney : Travis County Austin, Texas

Dear Mr. Jones:

. . f-Q 25, 1948

opinion No. V-587

Re: Question relati’hgto the travel expense of a sheriff commissloned to return a fugitive from justice to this State.

Your request for an opinion of this department relating to the tr.avel expenses of a sheriff commiasloned to return.a fugitive from justice contains severalquestionwhich, for the sake of clarity,will be statedand answered separately.

Question No. 1 la as follows:
“Willyou please advise me vhetlier it is lawful for me to approve and the Commissioners1Court to pay the sheriff and hi’s

deputies under the provisions of Article 6877-l,,Vernon’s.AnnotatedTexas Statutes, for any mileage incurred &- side of the State of Texas?l”
Articles 1005 ind 1006,; Vernon’s Code of Crl!nlnal Prqcedure,respectively read:

“Art. 1005:
‘When the Governor deems it proper to demand a person who has committedan offense in this State and has fled~to another State or territory, he may commissionany suitableperson to take such requisition. The accused, If brought back to the State, shall be delivered up to the sheriffof the county In which it I.1alZeged he has committed the offense.

“Art. 1006:Hon. Perry L.,Jones,page 2 (V-587)

"Section1. The officer or person so coknlgglonedshall receive as compensation the actual and necessary traveling expenses upon requisition of the Governor to.be allowed by such Governor. and to .be~

paid out of the State Treasury upona certificate of the Governor.recitingthe se~rvlces rendered and the allowance therefor;
"Section 2. The CommissionersCourt of the countywhere an offense is committed may in Its discretlon,,on the request of the Sheriff and the recommendation of the DistrictAttorney,pay the actual and necessary traveling expenses of the officer or person so commissioned out of,,any fund or funds not otherwisepledged.

A sheriff,deputy sheriff, or other peace officer who goes to'another state after a fugitive from justicemay not be legally paid his actual and,necessary~.travellng

expensesby either,the State or county under.the provisions of Article 1006, unless he was commissionedan agent of the State by the Governor in accordancewith the provisions ofArticle 1005.

You have advised us that the Commissioners' Courts of Travis County has allowed the sheriff~andhis deputies~s&xcenta,.per mile for the use and operations of their personally owned automobiles as authorizedby aection (c) of Article 6877-1,Vernon's Civil Statutes. This Article refftrlcta the payment for such mileage to miles traveled to and from points within this State", by ouch officers in theperformance of their officialduties as sheriff or deputy sheriff.

This department stated in Opinion No. V-525, dated March 23, 1948, that if a sheriff or other peace officer of this State should execute In ano,ther State a warrant of arrest or capias.lssued in this State, such an arrestwould be without authority of law, and such officer'spositionwould be no better or different from that of a private citizen,, and<that a sheriff or other peace officer of this State has ,nojurisdictionbeyond the boundaries of his State.

Ithas been for many years'the opinion of this office thatwhen a sheriff,his deputy, or other peace officer has been commissionedby the,Governor as anHon. Perry L. Jones, page 3 (V-587)

agent of the State, under Article 1005, such person in performinghis duties as such agent does not act in the dual capacity of both agent and officer,but at all times acts only as such agent until he has completed the purpose.for which he was appointed, and travelsboth within and without the State in that capacity. Oplnlon No. 286.2, Report,

and Opinions of the Attorney General, 1930- 1932, p. 291; Opinions Nos. O-1016 and~O-4444..

The',form

of commission lssued'toan agent of the. State whether he be a sheriff, other peace officer, or a private cltizen,.has for severalyears contained this significantprovision:

.~ "I do hereby 'directthe :said to rheive said fugitive;bring. .*.*.. to this State and deliver

. . . to the Sheriff of the County of

. . . inside

.. .the jail of.said County."

when the.agent.haa fully performed the duties imposed.uponhim by the foregoingprovision,and not before, his agency is automatically terminated..

For the reasons'heretofore stated,lyour first question is an3wered.i.n the negative. Question..Ro.

2 ,is, as follok:
'Willyou please adviseme,whether it is lawful for me to approve and the Cofmnlaaloners'

Court to pay an agent of : the State of Texas, commissionedby the Governor In accordance with theprovisions ofArticle'l005,V.C.C.P., any additional gum over the actual and necessary travel- .' lng expensespaid to him by the State of Texas for receiving a-fugitive from'jus- .tlce from the.~authorities of another state, and returninghim to -TravisCounty, Texas? (Rmphaa~sadded) :.

._ .' In answer to your second question, It 1s our opinion that neither the State nor the countymay legally pay an,agent of the State any more than his actual and necessary~travelingexpenses. Under the law as it .now,exlsts,the payment of such expenses is an obligation of .theStateanditispresumed the State, will respect its obligation. Of course, if the State fully pays suchHon. Perry L. Jones, page.4 (V-587

expenses, the county cannot supplementwhat the State has paid,'.for

the ngent has receiveda&l the law has allowed him. However, should the State refuse to pa.y him any legitimate item or items of expense actually and necessarily incurredby him as such agent, then the Commissioners' Courtmay in its discretionpay the same in accordance with Section 2, Article 1006, V. C. C. P., but it may not legallypay him any mileage for the use and operation of his privately owned automobile for miles'traveled eitherwithin or without the State, under the provisions ofArtlcle.6877-1. Therefore,gourd second question shouldbe answered in the negative.

Our answers to questionsNos. 1 and 2 make it unnecessary to answer your questionsNos. 3(a),.,3(b), 4, 5 and 6. Question ko. 7 is as follows:

"If, in answer to any of the above questions,you hold that it is lawful for me to 'approve and the Commissioners' Court ,to Texas, pay to an agent of the State of

commiasloneh-bythe Governor .inaacordance with Article 1005,V.C.C.P. any amounts whatsoeverunder the provisions of Section 2 ofArticle 1006, V.C.C.P. then can the Commissioners'Court require that an applicationbe made by the agent and an estimate of the mileage, and the expenses to be paid an agent of the State of Texas, commissionedas above set out, before he proceeds to somepoint outside theate of Texas to receive from the : authorities thereofa fugitive from justice?" (Emphasisadded) Section 2 of Article 1006 does not lmpose'upon a county, as it does upon the State of Texas, the mandatory duty of paying the actual and necessary traveling expenses incurredby an agent of the State in the performance of his duty. The CommissloneralCourt may. or may not in Its dlscretlon~pay'suchexpe~naes in accordance with Section2 above. This belngtrue, we know of no legal reason why the Commisslonersl,.Court may not require an agent of the State,before he leaves to fulfill his mission, to file with It an estimate of the actual and necessary expenses, including actual coat of , transportation,he will~incur in making the trip.-. .

Hon. Perry L. Jones, page 5 (V-587)

3urmARY : 1. A Commissioners'Court under Article 6877-1,V. C. S., has no authority to pay a~gheriff or his deputies any mileage for the use and operation of their personally owned automobile for miles traveled outside of this State. ;....! ;. Authority for payment of actual expenses .isset out in Article 1006:
2. A prerequisite for compensation for traveling expensesbeyond the State line la that the officerbe commissioned by the Governor to return a fugitive from justice. If so commissioned,he shallbe paid his actual and necessary traveling expenses either by the State or the Commiesloners' Court in its discretion,but not by both. Article 1006,V.C.C.P.
3.'~A sheriff commissionedby the Governorto return a fugitive from another State travels as an agent of the State and not as a sheriff, and would not be entitled to compensation in'excess of his actual and necessary 'traveling expenses..Attorney General's OpinionsNos. 2682, O-1016 and o-4444. . .
4. '. It la the duty of the State to pay the actuaLand necessary traveling -expenses of an agentsof the State. However, should it refuse to pay him any legitimateitem or items of such expense, the Commissioners1 Court may In its discretionpay the same in accordancewith Section 2,'Article 1006, 'V.C.C.P., but 'maynot pay him any mileage for the use and operation of his privately owned automobile-formiles traveled either with& 'inor without the State under the provi- ; along of Article 6877-1,V. C..3:

5."If a Commis3ioners~Court agrees to pay the actual and necessary traveling expenses of an agent.of the State in returninga fugitive from justice, said 

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Hon. Perry L. Jones, page 6 IV-587) . .& 8: ~<',k 

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Commissioners~Courtmay require an estimate of such expensesbefore the agent proceeds to a point outside the State.

Yours very truly,
ATTORNEYGENERAL OF TEXAS

BW:mw By

Burnell Waldrep Assistant -