### OFFICEOFTHEATTORNEY GENERALOFTEXAS 

### 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 rr0ma letter ment of Public Bare reqie8t tie opinion bill or Dre. 

### Wooten allration 

### ana8eaioner, ir 

### a legal 

### Exeoutire Department

n a 

### quertlon 

### 0rfaot, 

### we D~ireotor of the Departprivate oitiren ze a plaee in Havarnted on habitual orisltial inounty ma had not been inOountr whenthe Texas Highway eb te transport him to Wllu n habitual orlmlnal lnrlictmentm

was in good oonaition **ana** wa8able to be roved. Berore ‘reaching Mllam County, Watkinr’ oondltion 

### beoameorltioal 

### ana Hflam County l uthorltfee hadlo place where a prlaoner in auoh a @xxlltlOn oould be properly sareguaraea. 80 it beoame neoeaeary ror the Patrol to plaoe this manin seton Infirmary, Austin, **Texa6,** anb to provide a guard for himuntil_.

. .

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 mandie for laok of mealoal attentlon that the law of humanity aemanaebe loooraea even to notorloue publle enemler.’ At the 

### time the locount In queetion wanlnourred 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, andwar being traneportea from lavarro County to WllamCounty by the Texan HlghwayPatrol, to be tried on habitual orlmlnal IndIotmente pending In the latter oounty. Member8of the Texas HighwayPatrol are fIren euoh authorlt under Article 4413 (1.21, subdivIsion (41, ernon’e Annotated Iv11 Btatutes, whioh provides, In part, ae E 

### 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 member6of the Texan Ranger toroe.’ To etermlne the extent of such authority, werefer to Artiole 4413 Xl), 6ubaIrlsIon (41, Vernon’6 Annotated CIrIl Stat? utee, 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 whenIn 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 gtats. All orrIcer operating by virtue of thlr Act #hall hare the authority to makearrerts, a6 dIrected by warrants, an8without a warrant under the oondltlone nowauthorized by law, ana alro In all oaaea whenthe alleged offender 

### 18 traveling on a railroad, In a motor vehiole, aeroplane or boat. whenany of #ala force shall arrest any person ohargea with a orimlnal offense, they #hall forthwith convey aala person to the county where he 60

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~‘;;?: ~&>~.:~$.r.~ p/j,.c;.~ z,+ ;*” .~:;; ,,~. ~.,/ ?_ ‘!h,*..#*:, &.itc.. ;r&h$+ F. ., .r:?J.‘

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_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, wepoint to Artlale 36, 006s 

### orCtiminal Prooedure, which Inoludee the Texas ganger ioroe within the deflnltlon andl

oope of the 

### term“peaoe offIoereg. Coneequeatly, from the roregolng 

### l tatutee, It Is eetabllehea that the powera and duties or the memberaOSthe Texas HighwayPatrol, In oonneotlon with the exeoutlon of orImInal prooeee, ana the Ouetoay and safe-keeping of prleonere thereunder, will be the sameae the power6 ma dutleo oonferrea upon 

### l herIrre, and otiierpeaoi oltloere, under governing statute6 and the decIeIone. St 16 the well letabliehed 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 himouetoay and deliver him over to the proper authorities at the proper time, Is nomore 

### 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 muchoffloer under orlmlnal prooeee. ;ir311;; ~~eone and PrIeonere, 3.0. 10). Logan vs. U.S., i4i- iris. BtaCevs. 8. b

Qt. 617 36 L. Ed. 429; ExParte Jenkins, 68 N.E.360; obln, 04 ea. 40. * Under the 

### fact6outlined In your letter It Is our opinion that eaoh of there two oo-existing duties require& that the orfloere whohadJaok watklne In ouetody red to It that neoeesary ana proper ledloal attention andhoepltalItatIon be promptly afroraed much prisoner. the publlo, *a rrgardn the duty of muchoffloere to the state, 

### or to

in the safe delivery of 

### the prisoner over to the authorlties of Ullam County ior trial onpenalng IndIotmente, the furnIehIng of euoh lealoal oare andhoepItalleatlon amwaeneoeesary to preeerve the life of this prisoner was olrarly In line with muchduty. Raaa rescue or delivery of the prleoner been attempted while he wa8 being transported In the ouetody or there offioerr, or had a mobattempted to take the prisoner*6 life or do himbodily 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 sametoken, 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 : rl

1~

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

the opinion that the l otlon of 

### the Patrolmen In thIe oaee waeamply Justdried by the raote. Theoonaltlon 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 Highwayhatrol In taking himrrom,Iavarro County, or by any l ot or ommleelon on 

### the part of raid Patrol whI1e hewarnIn ouetody. Hot to hate furnlehetl medical attention under 

### the elroumrtanoes would have been awanton and reokleee disregard of the oommondlotatee of humanity.

But deeplte the prleoner’e orItIoal ,ana Inrolvent oondtlon, and this faithful dlroharge 

### or the duty rertlng upon the Rate HighwayPatrol 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 someexpress provision of the law, the public 

### i6not liable to a phyelolan or surgeon for l ervIaes rendered a prisoner at the lnetanoe of a peaoe~orriaer, even though Nob prisoner I6 insolvent andunable to ay for euah attention. 21 R.C.L. 1176; llolan vs. Cobb County, 81 3.

. 124, 50L.R.A. (g.8.) E 

### lW3, 

## ananotes.

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 eneeBOeotkLrrp: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 malntemanoeof prleonere oonfIne6. In Jail or umber guard, the sheriff shall be allowed the follow4ng charger :

‘3. Par naoereary ledloal bill and reaaon- ,able extra oompenratlon for att,entIon to a prleonor during eIckneee Noh an amountae the 

### oommIeeIonere oourt of Checounty where the prisoner 

### Lmoonrlqed 

### maydetermine to be Just andproper.* Theprleoner, Jaok ~atklne, ramolearly under guard, wlthIn the meaning of the above statute eo a8 to makeneoeseary 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)) Vernoníl Annotated Civil btatutee, Highway Patrolmen were olothea with all the ,: power and authority of such sheriff. Ii the question be madethat 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 itHonorable 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 HighwayPatrol 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, wecite the oaee of Lamarvs. Pike County, 30 8. g. 912, holding that a oountg was liable ror medloal services rendered by a phyelolan Nmmonedby 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 awayfrom the Jail, notwlthrtanalng the rtatute provided that the latter should render 6uohmedical 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 summona 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 summonthe eebretary of 

### the board of health, twelve miles distant, whenthe neaeeal ry mealoal ala ooula be obtained Speedily and near at hand, andwas eeeentlal to rave the life of the prlroner.

. . . Ueoannot believe that the law Intended where a manwas In Jail, ad In need OSmedical 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 HighwayPatrolmen In line ,of duty. Bubdlvlrion (4) 

### orthis Artlole outlines the powers and dutIe6 of %ngere In the exeoutlon of ., criminal process, and provIde6: “All neoeeeary expenses thus lnourred shall be t:~m, of the Texas E

ala by the state.* A6this 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 xpen8e8

ihir l eoOUnt h&rbeen apprOTed for payment out Ofthe appropriation for the Ereoutlre Department, under General Laws, Fortyfifth L8 8lon $a4T

lrlature, p. 1420, 8pproprlating #Q,OOO.OOunder 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 TOUare. 8ccordfngly adrired that Iame I8 a proper charge l galn8t ruoh appropriation.

Your8 very truly ATTORHEY

GERERAL

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

Pat M. lieif, Jr.

Am818tant PHtl:FG APPROVED

:
ATTORNEY

GENFiRAL

OF'TEXA8