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### E ET GENERAL

Honorable IL W. Allen DistrictAttorney Hamilton, Texas

Dear Sir: Opinion No. O-3010 Re: Sheriff'smileage fee or actual costs in returning a prieoner under a felony indictmentwho has escaped (under sections 1 and 6 of Article 1030 ofArticle 1037, C.C.P.)

Your request for the opinion of this department on the questionsherein stated has been received and carefully considered. Ue quote frms your letter as follows:
"(1) Is a sheriff entitled to compensationunder Sec. 1, Art. 1030, C.C.P., for mileage traveled in arresting a defendantunder a felony indictmentwho had previouslybeen in oustody under a Justice Court complaint charginghim with suah felony and escaped from jailwhile being so held?
"(2) In the event the provisions ofArt. 1030, Sec. 1, CCP do not apply to the foregoing facts,would such officerbe entitled to compensationuuder Sec. 6, Art. 1030 aforesaid as being *serviceof criminalprocess not otherwise provided for.'
"(3) In theevent you answer the foregoing questions in the negative, would the oounty be liable for the actual cost of returningan escspee underArt. 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 eachwarrant of arrest or capias, or for making arrestwithoutwarraut, when authorizedby 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 theprisoner or prisonsis to jail, mileage, as provided for in subdivision4 shallbe allowed; provided, that in countiesthat in counties that have a population of less than forty thousand inhabitants,as shown by the precedingFederal census, the following fees shall apply: For executing eachwarrant of arrest or oapias, or for making arrestwithout warrant, nhen authorizedby law, three dollars and fifteen cents for eachmile actually and neaessarily traveled in going to place of arrest, and for conveyingprisoners to jail,mileage as provided for in subdivision4 shallbe allowed: and one dollar shallbe allowed forHonorable H. W. Allen, page 2 (o-3010)

the approval of a bond."

"Sec. 6. To officers for service of criminalprooess not otherwiseprovided for, the sum of five centsa mile going and returning, shall bs allowed)provided, if two or more persons are mentioned in the same or differentwrits, the rules prescribed in subdivision 5 shall apply; provided, eat in counties that have a population of less than forty thousand inhabitants,as shownby the preceding Federal censuss the following fees shall apply8 To officers for service of criminalprooess not otherwiseprovided for, the sum of ten cents a mile going and returning shellbe allowed; provided, if two or more persons are mentioned in the same or differentwrits, the rule prescribed in subdivision 5 shall apply."

Vernon'sAnnotated Code of Criminal Prooedure,Artiele1020, as amended, reads in part as follows:
"Sheriffsand 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 inmisdemeanor eases fn County Court to be paid by the State, not to exceedFour 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 attachingwitnesses in the county where the case is pending. Provided no sheriff or constable shall receive from tie State any additionalmileage 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 courtbased upon the same aher5e or the same criminalact, 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,todupliaate his fees for mileage formaking arrests,with or without warrant, or when two ormore warrants ofarrest or capiases are served or couldhave been served on the defendant on any one day,"

Article 233, Code of CriminalProcedure, direats the officer executing awarrant ofarrest to take the person arrested forthwit& before the magistratewho issued thewarrant, or before themagistrate named in thewarrant. Chapters 3 and 4, Title 5, Code of Criminal Procedure, provide the procedure to be followed, following the eotion direoted by saidArticle 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 magistratemakes the proper order thereon (Artiole 261)~ ifwaived, requires bail (Artiole 299).

From the faots, stated generally In your letter, ws conclude that the defendantwas cornuitted to jail by the "proper orders of the magistrate under the prooedure referred to in the precedingparagraph, and, while so held in custodyby 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 shellbe placed in jailby 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 committedforwant 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 unusualmeans to secure this end, but shall adopt all necessarymeasures to prevent the escape of a prisoner. He may summon a guard of sufficientnumber, in case it becomesneoessary 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 .safelykeep therein all prisoners oonnnitted thereto by lawful authority, subject to the order of the proper court,and shallbe responsible for the safe keeping of suchprisoners. The sheriffmay appoint a jailer to take charge of the jail, and supply thewants of those therein confined;but in all oases the sheriff shall exercise a supervisionend control over the jail."

Vernon'sAnnotated 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, shellbe alloqedby said Court, end paid out of the County Treasury.

. . ."

From the heretiebove quoted provisions of the Code of CriminalProcedure and the Revised Civil Statutes, it is readily apparent that theLo&slature intended that the sheriffbe held striotly~aocountable~~for'the safe keeping or prisoners legally oonnaitted to his custody. Moreover, the Penal Codemakes e sheriff criminally liable for wilfully permittingan accused or convictedperson to escape (Article 319) end for negligentlypermitting such
a person to esoape (Article 322).

The re-arrestingof a defendantwho has esoaped.~ from the sheriff's custody is not the "semice of oriminal processnot otherwiseprovided for" within Article 1030, Section 6 of the Code of Criminal Procedure, supre. Such a serpice amounts to nothing more than a "subsequentarrest of a defendant in the *ame case," as provided inArticle 1020, Code of Criminal Procedure, supra, for whioh.e sheriff is expresslyprohibited frcp receiving additionalmileage.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, Oodoof Crimiml Prowit;:c,

### ~i,titl** #a 

### rhorifT to 

### 00111~08oatloe lrorn %o Etrto, for milorgo trovolod ia arroa6191;o. dofeadaat

### odor a fololqy iadiobnaat whohad prorl~u~ly kofi in QUD. 

### tody undor 

### a jurtioo 

### oourt oomplailnt ohar&eg him nlth uuoh felony a& oroaprd from

### jailwhllo kiq 10hold.

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 

### IObrought *hall bo 

### liable for tho 

### oxpoaor of his safe

### koopiag.”

Woklioro that tho liability 

### of tho oounty,

### under the artlclo ' quoted, 

### is rortriotod to %hoool 

### xpoaooo iaourrod by the ahoriff in avail

### ing 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 omoadodin 1989, rupra). To 

### aoaotruo Artiolo 1057, 

### Codoof arimiaal Proooduro, aupra, 

### a* rondoring the county liable to thr sheriff for miloago traveled la 

### roturnlag UIoooapod 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 

### moanthe *am*an lleblo for all oxpsaeos oa aooouat of not 

### koopiag primaorr 

### rafoly~

Tohold 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, 11a publio polioy 

### arorrrary to tho l aforormoat



### of tho 

### 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,Oodoof 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



### Youare thoroforo ro;pootfully advlood that l uoh of 

### the throo quortlonr rubnlttodshould bo anmorod in the nogutivoe PIPIT(llOgW 

### PRovaobull la, 1941 7

### o/ Porrld 0. Mann ATTOWNQIDllBRU

OFTlpxld Vary truly yourr AT,TTORNlY



### QBNIE#bt OFT8iltA6 Q /N/ Wp;rr 

### Phil BklgarPfoll 

### AaDiOttmt