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E ET GENERAL 

Honorable IL W. Allen 

District Attorney 

Hamilton, Texas 

Dear Sir: Opinion No. O-3010 

Re: Sheriff's mileage fee or actual 

costs in returning a prieoner under a 

felony indictment who has escaped 

(under sections 1 and 6 of Article 1030 

of Article 1037, C.C.P.) 

Your request for the opinion of this department on the questions herein 

stated has been received and carefully considered. Ue quote frms your letter as 

follows: 

"(1) Is a sheriff entitled to compensation under Sec. 1, Art. 1030, C.C.P., 

for mileage traveled in arresting a defendant under a felony indictment who 

had previously been in oustody under a Justice Court complaint charging him 

with suah felony and escaped from jail while being so held? 

"(2) In the event the provisions of Art. 1030, Sec. 1, CCP do not apply to 

the foregoing facts,would such officer be entitled to compensation uuder 

Sec. 6, Art. 1030 aforesaid as being *service of criminal process not otherwise provided for.' 

"(3) In the event you answer the foregoing questions in the negative, would 

the oounty be liable for the actual cost of returning an escspee under Art. 

1037, CCP, providing that the county is liable for the cost of *safekeeping* 

prisoners?" 

A&ole 1030, Code of Criminal Procedure, provides as follows~ Sacs. 

1 and 6x 

"Section 1. For executing each warrant of arrest or capias, or for making 

arrestwithoutwarraut, 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 prisonsis to jail, 

mileage, as provided for in subdivision 4 shall be allowed; provided, that 

in counties that in counties that have a population of less than forty 

thousand inhabitants, as shown by the preceding Federal census, the following fees shall apply: For executing each warrant of arrest or oapias, or 

for making arrest without warrant, nhen authorized by law, three dollars 

and fifteen cents for each mile actually and neaessarily 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 dollar shall be allowed for 
Honorable H. W. Allen, page 2 (o-3010) 

the approval of a bond." 

"Sec. 6. To officers for service of criminal prooess not otherwise provided 

for, the sum of five cents a mile going and returning, shall bs allowed) provided, if two or more persons are mentioned in the same or different writs, 

the rules prescribed in subdivision 5 shall apply; provided, eat in counties 

that have a population of less than forty thousand inhabitants, as shown by 

the preceding Federal censuss the following fees shall apply8 To officers for 

service of criminal prooess not otherwise provided for, the sum of ten cents 

a mile going and returning shell be allowed; p rovided, if two or more persons 

are mentioned in the same or different writs, the rule prescribed in subdivision 5 shall apply." 

Vernon's Annotated Code of Criminal Prooedure, Artiele1020, as amended, reads in part as follows: 

"Sheriffs and Constables serving process and attending any examining court in 

the examination of any felony oase, shall be entitled to suchfees as are fixed by law for similar servioes in misdemeanor eases fn County Court to be paid 

by the State, not to exceed Four and Do/l00 (#4.00) Dollars in any one case, 

and mileage actually and neoessarily 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 Pacts may be, but no mileage 

whatever shall be paid for summoning or attaching witnesses in the county 

where the case is pending. Provided no sheriff or constable shall receive 

from tie State any additional mileage for any subsequent ar-est of a defendant in the ssme case, or in any other case In an examining court or in any 

district court based upon the same aher5e or the same criminal act, or growing out of the same ariminal tranaestion, whether the arrest is made with or 

without a warrant, or before or after indictment, and In no event shall he 

ne allowed,to dupliaate his fees for mileage for making arrests, with or 

without warrant, or when two or more warrants of arrest or capiases are served or could have been served on the defendant on any one day," 

Article 233, Code of Criminal Procedure, direats the officer executing awarrant of arrest to take the person arrested forthwit& before the magistrate who issued the warrant, or before the magistrate named in the warrant. 

Chapters 3 and 4, Title 5, Code of Criminal Procedure, provide the procedure 

to be followed, following the eotion direoted by said Article 253. The magistrate shall proceed to hold an examining trial (Article 245) or the aooused 

waived the same (Artiole 299). After an examining trial has been held, the 

magistrate makes the proper order thereon (Artiole 261)~ if waived, requires 

bail (Artiole 299). 

From the faots, stated generally In your letter, ws conclude that 

the defendant was cornuitted to jail by the "proper orders of the magistrate 

under the prooedure referred to in the preceding paragraph, and, while so 

held in custody by the sheriff awaiting the action of the grand jury, he 

escaped. 
Hon. H. W. Allen, page 3 (O&010) 

Article 42, Code of Criminal Prooedure, provides es follows: 

"Art. 42. V&en e prisoner is committed to jail by warrant from a magistrate or 

court, he shell be placed in jail by the sheriff. It is a violation of duty 

on the part of any sheriff to permit e defendant so committed to remain out of 

jail, except that he may, when a defendant is committed for want of bail, or 

when he arrests~in e bailable case, give the person arrested a reasonable time 

to procure bail; but, he shall so guard the accused es to prevent escape." 

Artiole 265, Code of Criminal Proaedure, provides es follows: 

"Art. 265. Every sheriff shall keep safely a person committed to his custody. 

He shall use no aruel or unusual means to secure this end, but shall adopt all 

necessary measures to prevent the escape of a prisoner. He may summon a guard 

of sufficient number, in case it becomes neoessary to prevent an escape from 

jail, or the re*Due of a prisoner.R 

Article 5116 of the Revised Civil Statutes of 1925 provides as followas 

'krt. 5116. Each sheriff is the keeper of the jail of his county. Re shall 

.safely keep therein all prisoners oonnnitted thereto by lawful authority, subject to the order of the proper court, and shall be responsible for the safe 

keeping of such prisoners. The sheriff may appoint a jailer to take charge 

of the jail, and supply the wants of those therein confined; but in all oases 

the sheriff shall exercise a supervision end control over the jail." 

Vernon's Annotated Civil Statutes, Article 6671, as amended in 1939, 

provides in part es follows: 

"Art. 6871. Rhenever in any county it beoomes neoessary to employ guards for 

the safekeeping of &isoners and the security of jails, the Sheriffmay, with 

the approval of the Commissioners * Court, or in case of emergency,with the 

approval of the County Judge, employ such number of guards as may be neoesseryj 

and his accounttherefor, duly itemized and sworn to, shell be alloqed by said 

Court, end paid out of the County Treasury. . . ." 

From the heretiebove quoted provisions of the Code of Criminal Procedure and the Revised Civil Statutes, it is readily apparent that the Lo&slature intended that the sheriff be held striotly~aocountable~~for'the safe 

keeping or prisoners legally oonnaitted to his custody. Moreover, the Penal 

Code makes e sheriff criminally liable for wilfully permitting an accused or 

convicted person to escape (Article 319) end for negligently permitting such 

a person to esoape (Article 322). 

The re-arresting of a defendant who has esoaped.~ from the sheriff's 

custody is not the "semice of oriminal process not otherwise provided for" 

within Article 1030, Section 6 of the Code of Criminal Procedure, supre. 

Such a serpice amounts to nothing more than a "subsequent arrest of a defendant in the *ame case," as provided in Article 1020, Code of Criminal Procedure, supra, for whioh.e sheriff is expressly prohibited frcp receiving additional mileage. 
Hon. HI 17. Allen, pge 4 (O-3010) 

It lo Woroforo the opinion of t:iio drgrrhont that noithor I**- 

tiea 1 aor ooctioa 6 of ktlolo 1030, Oodo of Crimiml Prowit;:c, ~i,titl** 

#a rhorifT to 00111~08oatloe lrorn %o Etrto, for milorgo trovolod ia arroa6191; o. dofeadaat odor a fololqy iadiobnaat who had prorl~u~ly kofi in QUD. 

tody undor a jurtioo oourt oomplailnt ohar&eg him nlth uuoh felony a& 

oroaprd from jailwhllo kiq 10 hold. 

Art1010 1087, Oodo of Qrlmiaal Proooduro, prwldor ao follower 

“Artr 1087, koh ooung ohall k liable for all l xpoao** inourrod oa a*- 

aount of tho oafo korplaE of prl*oa*r* ooafiaod in jail or kept under 

guard, l xoopt priroarru brought from mothor oouaty for oafokooping, or on 

haboao aorpui or 0haal;o of voaurfi iawhioh oaaon, fho oounty fromwhich tho 

priaoaor IO brought *hall bo liable for tho oxpoaor of his safe koopiag.” 

Wo klioro that tho liability of tho oounty, under the artlclo ' 

quoted, is rortriotod to %hooo l xpoaooo iaourrod by the ahoriff in availing hirmolf of the authority aad poor @WI him to uoo all nooossary mea*- 

uroo to provoat tho oooapo of a priooaor (Artiolo 266, C.C.P.), and to employ guardr for tho oafo keopiag of priroaors whoa aeoroaary (Article 6671, 

ao omoadod in 1989, rupra). To aoaotruo Artiolo 1057, Codo of arimiaal 

Proooduro, aupra, a* rondoring the county liable to thr sheriff for miloago 

traveled la roturnlag UI oooapod prluoaor, would 'be tantamount to holding 

that tho word6 “liable for all rxpoaoo iaourrod oa account of the *afo 

koopiag of prl*oa*r*n moan the *am* an lleblo for all oxpsaeos oa aooouat 

of not koopiag primaorr rafoly~ 

To hold the ohoriff l brolutely ro*poaaiblo for tho mfo kooplag of 

priaoaorr in hla ouatody, a* io madr hio duty under the law* of this Btato, 

11 a publio polioy arorrrary to tho l a foror mof o atho t Etato law*. To aid 

Go rhrriff ia the praotioal porfommaoo of that oolom duty, ho ha* ‘boon 

@voa alnoot unlimited authority to laour l xpoa*oo to hop hio priooaarr 

rafoly, If ho fall* to avail hkoolf of thrro moawrm ard tho prlwoaor 

rnako* hi* rroapr, tho ohorlff mot aoaumo the r**poaoibillty aad tho oo*to 

of hi@ rotura, 

It lo aooordia&y %ho furfior oplaloa of bhlr dopartParat that, 

uador tho faotr rtatrd, Artlolo 10117, Oodo of Orlmlaal Proooduro, doou not 

roador tho oounty llablo for tho aotual oo#tr of returning the l aoapod primoaw, rlaooruoh oortr are not a part of Wo woxpoarr lnourrod on aooount of 

tho raf* kerplag of prlooarrrn ooatorqplatod by *aid rtatutoe 

You are thoroforo ro;pootfully advlood that l uoh of the throo 

quortlonr rubnlttod should bo anmorod in the nogutivoe 

PIPIT(llOgW 

PRovao bull la, 1941 

7 o/ Porrld 0. Mann 

ATTOWN QIDllBRU OF Tlpxld 

Vary truly yourr 

AT,TTORNlY QBNIE#bt OF T8iltA6 

Q /N/ Wp;rr Phil 

Bklgar Pfoll 

AaDiOttmt