HOD. Perry L. Jones 

County Attorney : 

Travis County 

Austin, Texas 

Dear Mr. Jones: 

. . 

f-Q 25, 1948 

opinion No. V-587 

Re: Question relati’hg to 

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 

several question which, for the sake of clarity, will 

be stated and answered separately. 

Question No. 1 la as follows: 

“Will you please advise me vhetlier 

it is lawful for me to approve and the 

Commissioners1 Court to pay the sheriff 

and hi’s deputies under the provisions of 

Article 6877-l,,Vernon’s.Annotated Texas 

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 committed an 

offense in this State and has fled~ to 

another State or territory, he may commission any suitable person to take such 

requisition. The accused, If brought back 

to the State, shall be delivered up to the 

sheriff of the county In which it I.1 alZeged he has committed the offense. 

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

"Section 1. The officer or person so 

coknlggloned shall 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.reciting the se~rvlces rendered 

and the allowance therefor; 

"Section 2. The Commissioners Court 

of the county where an offense is committed may in Its discretlon,,on the request 

of the Sheriff and the recommendation of 

the District Attorney, pay the actual and 

necessary traveling expenses of the officer or person so commissioned out of,,any 

fund or funds not otherwise pledged. 

A sheriff, deputy sheriff, or other peace officer who goes to'another state after a fugitive from 

justice may not be legally paid his actual and,necessary~.travellng expenses by either,the State or county 

under.the provisions of Article 1006, unless he was 

commissioned an agent of the State by the Governor in 

accordance with the provisions of Article 1005. 

You have advised us that the Commissioners' 

Courts of Travis County has allowed the sheriff~and his 

deputies ~s&x centa,.per mile for the use and operations of 

their personally owned automobiles as authorized by 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 the performance of their official duties 

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 arrest would be without authority of law, and such 

officer's position would be no better or different from 

that of a private citizen,, and<that a sheriff or other 

peace officer of this State has ,no jurisdiction beyond 

the boundaries of his State. 

Ithas been for many years'the opinion of this 

office that when a sheriff, his deputy, or other peace 

officer has been commissioned by the,Governor as an 
Hon. Perry L. Jones, page 3 (V-587) 

agent of the State, under Article 1005, such person in 

performing his 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 travels both 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'to an agent of 

the. State whether he be a sheriff, other peace officer, 

or a private cltizen,.has for several years contained 

this significant provision: 

.~ 

"I do hereby 'direct the :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.upon him by the foregoing provision, 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: 

'Will you please advise me,whether 

it is lawful for me to approve and the 

Cofmnlaaloners' Court to pay an agent of 

: the State of Texas, commissioned by the 

Governor In accordance with the provisions 

of Article'l005, V.C.C.P., any additional 

gum over the actual and necessary travel- .' 

lng expenses paid to him by the State of 

Texas for receiving a-fugitive from'jus- 

.tlce from the.~authorities of another state, 

and returning him to -Travis County, Texas? 

(Rmphaa~s added) :. 

._ .' 

In answer to your second question, It 1s our 

opinion that neither the State nor the county may legally pay an,agent of the State any more than his actual 

and necessary~traveling expenses. Under the law as it 

.now,exlsts, the payment of such expenses is an obligation of .the Stateanditis presumed the State, will respect 

its obligation. Of course, if the State fully pays such 
Hon. Perry L. Jones, page.4 (V-587 

expenses, the county cannot supplement what the State 

has paid,'.for the ngent has received a&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 incurred by him as such agent, then the Commissioners' Court may in its discretion pay the same in 

accordance with Section 2, Article 1006, V. C. C. P., 

but it may not legally pay him any mileage for the use 

and operation of his privately owned automobile for 

miles' traveled either within or without the State, under the provisions of Artlcle.6877-1. Therefore, gourd 

second question should be answered in the negative. 

Our answers to questions Nos. 1 and 2 make it 

unnecessary to answer your questions Nos. 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-by the Governor .in aacordance with Article 1005, V.C.C.P. any 

amounts whatsoever under the provisions 

of Section 2 of Article 1006, V.C.C.P. 

then can the Commissioners' Court require 

that an application be made by the agent 

and an estimate of the mileage, and the 

expenses to be paid an agent of the State 

of Texas, commissioned as above set out, 

before he proceeds to some point outside 

theate of Texas to receive from the : 

authorities thereof a fugitive from justice?" (Emphasis added) 

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 incurred by an agent of the State in the 

performance of his duty. The Commissloneral Court may. 

or may not in Its dlscretlon ~pay'such expe~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 

.is set out in Article 1006: 

2. A prerequisite for compensation 

for traveling expenses beyond the State 

line la that the officer be commissioned 

by the Governor to return a fugitive from 

justice. If so commissioned, he shall be 

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 commissioned by 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 Opinions Nos. 2682, O-1016 and 

o-4444. . . 

4. It la '. the duty of the State to 

pay the actuaLand necessary traveling 

-expenses of an agents of the State. However, should it refuse to pay him any 

legitimate item or items of such expense, 

the Commissioners1 Court may In its discretion pay the same in accordance with 

Section 2,'Article 1006, 'V.C.C.P., but 

'may not pay him any mileage for the use 

and operation of his privately owned 

automobile -for miles traveled either with& 

'in or 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 returning a fugitive from justice, said 

609 

. 

-, , 

!. ; 

‘.! 
. - 

. ClIFU . ,,_ 8: 

Hon. Perry L. Jones, page 6 IV-587) . .& 

8: 

~<',

.:, 

Commissioners~ Court may require an estimate of such expenses before the agent 

proceeds to a point outside the State. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

BW:mw 

By 

Burnell Waldrep 

Assistant -