OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable Qeo. 

Cemptrolltr o? 

Awtin, Texas 

Dear sir: 

rebruaq 13, 1939 

Opinion 130. O-S!12 

Under hate or Janu 

or thin Dopartrent a* to whe 

& Qodaara, la the amount 

quote rr0m a letter 

ment of Public Bare 

reqie8t tie opinion 

bill or Dre. Wooten 

allration ana 8eaioner, ir a legal 

Exeoutire Department 

n a quertlon 0r faot, we 

D~ireotor of the Departprivate oitiren 

ze a plaee in Havarnted on habitual orisltial inounty ma had not been inOountr when the Texas Highway 

eb te transport him to Wllu 

n habitual orlmlnal lnrlictmentm 

was in good oonaition ana wa8 able to be roved. Berore ‘reaching Mllam County, Watkinr’ oondltion beoame orltioal ana Hflam County l uthorltfee had lo 

place where a prlaoner in auoh a @xxlltlOn oould be 

properly sareguaraea. 80 it beoame neoeaeary ror 

the Patrol to plaoe this man in seton Infirmary, 

Austin, Texa6, anb to provide a guard for him until 
_. 

. . 

Honorable @so. H. gheappard, February 16, 1839, Page 2 

euoh tine aa his oonaItLon would permit hla to 

be removed to the texae 3tate Penitentiary Hoepita1 at Eunterille, Texas. Thie department 

oould not let the man die for laok of mealoal 

attentlon that the law of humanity aemanae be 

l oooraea even to notorloue publle enemler.’ 

At the time the l ocount In queetion wan lnourred ror 

hoepItalIzatIon and medical Ieee to cave the life of Jack watklne, 

we 6hall aseume, ror the purpoee of thie oplnlon, that the raid 

Watkins was properly under arreet, a6 a prleoner, and war being 

traneportea from lavarro County to Wllam County by the Texan Hlghway Patrol, to be tried on habitual orlmlnal IndIotmente pending 

In the latter oounty. Member8 of the Texas Highway Patrol are 

f 

Iren euoh authorlt under Article 4413 (1.21, subdivIsion (41, 

ernon’e Annotated E Iv11 Btatutes, whioh provides, In part, ae 

r0n0w6 : 

‘In addition they rhall be, and they are 

hereby clothed with all the powers and authorlty whloh Is In this Aot or otherwlee by law given 

to member6 of the Texan Ranger toroe.’ 

To etermlne the extent of such authority, we refer to 

Artiole 4413 ? Xl), 6ubaIrlsIon (41, Vernon’6 Annotated CIrIl Statutee, whioh aonfere upon Texas Rangers the following right6 anti 

dutler In oonneotlon with the execution of crlalnal process: 

‘The otfloere #hall be olothea with all 

the powers of peace orflcers, and ehall ala In 

the exeautlon of the lawn. 

“They rhall have authority to make l rremte, 

ana to execute process In criminal oaeem; and In 

clrll oaeea when epeolally directed by the judge 

of a court of reoorb; and In all aaaea hall be 

governed by the law6 regulating and defining the 

power6 and duties of sheriffs when In the dincharge of’elmllar butlea; except that they rhall 

have the power and shall be authorlzed to make 

arrests and to execute all rooeee In orlmlnal 

Oases In any oounty In the g tats. All orrIcer 

operating by virtue of thlr Act #hall hare the 

authority to make arrerts, a6 dIrected by warrants, an8 without a warrant under the oondltlone now authorized by law, ana alro In all 

oaaea when the alleged offender 18 traveling on 

a railroad, In a motor vehiole, aeroplane or boat. 

when any of #ala force shall arrest any person 

ohargea with a orimlnal offense, they #hall forthwith convey aala person to the county where he 60 

~~ .,. (” .~.;L,:, . .,~~~~l;;;,~-.~~~~~~~~,~~,~~.~~~~ ” &.&&&q.;~ +&i L, ‘+>:;J +A.;; ~‘;;?: ~&>~.:~$.r.~ p/j ,.c;.~ z,+ ;* ” .~:;; ,,~. ~.,/ ?_ ‘!h,*..#*:, &.itc.. ;r& h$+ F. ., .r :?J. ‘. S~,?%~X + P.3* ?.i’: ~.:s*:i:sir ’:;~,~r_~,.i~v4~:~~.~~.

a.e 

_ 
bnorable Qeo. H. Sheppard, February 15, 1939, ?age 3 

stands dhargea, and shall deliver him to the 

proper offloer, ,taklng hi6 reoelpt thereror, 

All neoeeear expenses thue Incurred shall be 

paid by the is tate.” 

Normover, we point to Artlale 36, 006s or Ctiminal Prooedure, which Inoludee the Texas ganger ioroe within the deflnltlon a nd l oope of the term “peaoe offIoereg. 

Coneequeatly, from the roregolng l tatutee, It Is eetabllehea that the powera and duties or the membera OS the Texas 

Highway Patrol, In oonneotlon with the exeoutlon of orImInal prooeee, ana the Ouetoay and safe-keeping of prleonere thereunder, 

will be the same ae the power6 ma dutleo oonferrea upon l herIrre, 

and otiier peaoi oltloere, under governing statute6 and the decIeIone. 

St 16 the well l etabliehed general rule that the duty a 

oherlrf or other peaoe offioer owee to the state or to the public 

‘to eafe;y keep a prisoner oommltted to him ouetoay and deliver him 

over to the proper authorities at the proper time, Is no more oompuleory than Ir the duty he owes the prisoner hlm~elf to exerolee 

reasonable and o+Iqary oare to proteot hle life and health. There 

two dutler are so-extensive and arise by virtue of the egeppLor 

euoh prisoner by much offloer under orlmlnal prooeee. 

;ir311;; ~~eone and PrIeonere, 3.0. 10). Logan vs. U.S., i4i- iris. 

BtaCe vs. 8. b 

Qt. 617 36 L. Ed. 429; Ex Parte Jenkins, 68 N.E.360; 

obln, 04 ea. 40. * 

Under the fact6 outlined In your letter It Is our opinion 

that eaoh of there two oo-existing duties require& that the orfloere 

who had Jaok watklne In ouetody red to It that neoeesary ana proper 

l edloal attention and hoepltalItatIon be promptly afroraed much 

prisoner. 

the publlo, 

*a rrgardn the duty of much offloere to the state, or to 

in the safe delivery of the prisoner over to the authorlties of Ullam County ior trial on penalng IndIotmente, the furnIehIng 

of euoh l ealoal oare and hoepItalleatlon am wae neoeesary to preeerve 

the life of this prisoner was olrarly In line with much duty. Raa a 

rescue or delivery of the prleoner been attempted while he wa8 being 

transported In the ouetody or there offioerr, or had a mob attempted 

to take the prisoner*6 life or do him bodily Injury, It would have 

been the olear duty of euoh offloere to inour any expense neoeseary 

to retain ouetoay 0r him, and to save pir lire, In order that he 

might be delivered over for trial. B&the same token, a duty rented 

upon the offloere ln the Inrtant oaee ..to preserve the lire of the 

prisoner rrom the Illness whloh threatened It In order that he might 

be brought to trial In *Ilam county ror an offense agalnet eo(lety. 

But oonrlderlng this question solely from that other phase ‘: 

oil a peace orflcer’e duty to the prisoner himsell, to exercise rea- ,’ 

eonable and ordinary care to proteot hle ilfe and health, we are of : r

1~ 

- 
Ponijrable aeo. H: uheppard, February 16, 1939, Page 4 

the opinion that the l otlon of the Patrolmen In thIe oaee wae amply Justdried by the raote. The oonaltlon of the prisoner, whloh 

beoame so orltloal a6 to require medical attention during hIa 

traneportatlon was not brought about by the negligence of the 

Texae Highway hatrol In taking him rrom, Iavarro County, or by any 

l ot or ommleelon on the part of raid Patrol whI1e he warn In ouetody. 

Hot to hate furnlehetl medical attention under the elroumrtanoes 

would have been a wanton and reokleee disregard of the oommon dlotatee of humanity. 

But deeplte the prleoner’e orItIoal ,ana Inrolvent oondtlon, and this faithful dlroharge or the duty rertlng upon the 

Rate Highway Patrol to the State and to the prl6oner, the olalm 

presented with your letter oannot be by you allowed ana paid, In 

the abeenoe or some l tatute so providing; beoauee It Is the general rule that In the l beenoe of some express provision of the law, 

the public i6 not liable to a phyelolan or surgeon for l er vIa es 

rendered a prisoner at the lnetanoe of a peaoe~orriaer, even though 

Nob prisoner I6 insolvent and unable to ay for euah attention. 21 

R.C.L. 1176; llolan vs. Cobb County, 81 3. E . 124, 50 L.R.A. (g.8.) 

lW3, ana notes. 

That the LegIelature of Texae, in reoognition or this 

duty or a peace errloer to preserve the life of hIr prisoner, Intended to provide for the payment of ex eneeB OeotkLrrp:i?.p this end, Is 

ovlaenoea by Artlole 1040, 9eo. S, 8 

lng a6 rollowe: 

ode of Criminal Prooedure, provia- 

‘For the safe keeping support and malntemanoe of prleonere oonfIne6. In Jail or umber 

guard, the sheriff shall be allowed the follow4ng 

charger : 

‘3. Par naoereary l edloal bill and reaaon- 

,able extra oompenratlon for att,entIon to a prleonor during eIckneee Noh an amount ae the oommIeeIonere oourt of Che county where the prisoner 

Lm oonrlqed may determine to be Just and proper.* 

The prleoner, Jaok ~atklne, ram olearly under guard, wlthIn the meaning of the above statute eo a8 to make neoeseary medloal 

bills a proper olalm l galnet Milan bounty, had the prleoner been In 

the ouetody of the rherlff theMof. 

But under Artialee 4413 (121, and 4413 (11)) Ver no ní l 

Annotated Civil btatutee, Highway Patrolmen were olothea with all the ,: 

power and authority of such sheriff. Ii the question be made that 

the prisoner ehould therefore have been taken to the.JaIl of nilam 

County In order that proper medIaa attention might have been afforAed, and elalm therefor pala under Artiale 1040, Code of Criminal it 
Honorable Qeo. H. Bheppard, rebruarx 15, 1939, page 6 

Prooedure, hereinabove quoted, we may that the racte berore u8 reveal that Milan County did not have proper faellItIee for this purpose, and the Texar Highway Patrol was Juetlfled, In thIe extreme 

emergenoy, In taking the prisoner to the nearest and beet plaoe for 

treatment and rare keeping. 

Am Illuetratlve or this dIeoretlon to waive N&Wory rormalItIe In l mergenolee, we cite the oaee of Lamar vs. Pike County, 

30 8. g. 912, holding that a oountg was liable ror medloal services 

rendered by a phyelolan Nmmoned by the Jailer to attend a prisoner 

in an emergenoy not admitting of the four hours’ delay neoeenary to 

proaure the attendanoe of the l earetary of the board of health, who 

rerlded twelve miles away from the Jail, notwlthrtanalng the rtatute provided that the latter should render 6uoh medical eervIoee as 

wore required by prisoners. The ootart raid: 

#In the oaee before us It was the duty or 

gmlth, the Jailer In aharge of the prisoner and 

acting for the l herlfr, to summon a oompetent 

phyelolan under the exlstlng emergenoy to treat 

the prisoner, and thereby save his life, If eueh 

oould be done. It would have been Inexcusable 

negleot on the part of the $aIler to have waited 

four hours to summon the eebretary of the board 

of health, twelve miles distant, when the neaeeal ry mealoal ala ooula be obtained Speedily and 

near at hand, and was eeeentlal to rave the life 

of the prlroner. . . . Ue oannot believe that the 

law Intended where a man was In Jail, ad In need 

OS medical service under the emergenoy existing 

in this oaee, where the board of oounty oommle- 

.eIonere had appointed a eeoretary of the board of 

health, whose duty It war In euoh oases to render 

suoh medical l 66letanoe, but whose rerldrnoe war 

so remote from the oounty Jail that he could not 

be prooured In time to render the aid needed, 

that the prisoner rhould be left to suffer and 

perhaps ale, and that the oounty would not be 

liable ror the rervloee thus rendered by a physician under the employment of the Jailer having 

the prisoner In oharge. ’ 

/ Furthermore, by the l xpre66 teq6, of Artlole 4413 (11) 

Vernon’6 Annotated Civil Btatutee, It Ir oontemplated that the 

state rather than the oounty ah611 pay expeneee neoeeearlly Incurred ~ 

by Highway Patrolmen In line ,of duty. Bubdlvlrion (4) or this Artlole outlines the powers and dutIe6 of %ngere In the exeoutlon of ., 

criminal process, and provIde6: “All neoeeeary expenses thus lnourred shall be t:

of the Texas E 

ala by the state.* A6 this statute applies to members .: 

Ighway Patrol, and elnoe the medical and ho6pItal ex- 
1 ’ 

Honorable Boo. A. gheppard, hbruarT 16, 1938, Page g 

penner In quertion were rearonably and aeorrrarlly oonneoted with 

the l xeoutlon of orimlnal prore88, 

rhould be pal& by the Etato. 

it follow8 that ruoh l x p en8e8 

ihir l eo OUnt h&r been apprOTed for payment out Of the appropriation for the Ereoutlre Department, under General Laws, Fortyfifth L8 

8lon $a4 T 

lrlature, p. 1420, 8pproprlating #Q,OOO.OO under kbdlrlfor ‘payment of r&war&r and other l xpen8e8 aeoeesary for ’ 

enforcrment of the 1aU”. 

For the realOn hrrelnabove 8et forth, lt 18 our oplnlon 

that the Olalm in quertion undoubtedly oonrtltutel 8n expense ‘neoel8ary for the enforormefit of the law* within thlsgproprlatlon, and 

TOU are. 8ccordfngly adrired that Iame I8 a proper charge l galn8t 

ruoh appropriation. 

Your8 very truly 

ATTORHEY GERERAL OF TFXAE 

lly (6lgned) Pat M. Heff, Jr. 

Pat M. lieif, Jr. 

Am818tant 

PHtl:FG 

APPROVED : 

ATTORNEY GENFiRAL OF' TEXA8