Honorable Gee. ME. Sheppard 

Comptioller of Public Accounts 

Austin, Texas 

Dear Sir: Re: Opinion No. O-2395 

Whether or not a sheriff 

$8 entitled to any fees 

from the State in attaching a witness in a foreign county. 

Your letter of riced date requests the opinion of this department 

touching two matters which may be briefly stated as follows: 

(1) what fees from the State is the sheriff of a county of 

lees than 20,000 inhabitants entitled to in a felony case, pending in'his county, where the diatrlct judge fines a witness'from 

a foreign county, who ie under subpoena end not present, causes 

to be issued an attachment for him directed to the sheriff of the 

county In which the case ie pending, and instructs the sheriff to 

go in% the foreign county, attach t&e witness, and bring him before the court; and with which the sheriff complies; and 

(2) Where, under~the same ciraumstances, the district judge 

does not fine the witness, but otherwise adopts the same~~procedure, with which the sheriff complies. 

Article 481 of the Code of Criminal Procedure reads a8 followsr 

"If a witness summoned from without the county refuse to 

obey a subpoena, he. shall be fined by the court or magistrate 

not eXaeeUng five hua(lred dollara,,whioh fine and jud@ent shall 

be final, unless aet aside after due notice to ehow cause why 

It ehould not be final, which notice may tiediately issue, requiring 

the aefanlting witness to appear et once or at the next term of eaid 

court, In the discretion of~the judge, to anewer for such defblt. 

The court may cause to be iesned at the came time an attachment for 

Ei8id Wit1~%38, direotd t0 the~proper county, co-ding tie officer 

to whom said writ la directed to take said witneee into custody ax@ 

before 

tzs!t 

said court at the time named in Bald writ; fn which 

888 shall receive no fees, unless it appeara to the aourt 

that such disobedience IS eXcuE8ble, when the wltneas m&y recaive the 

same pay as if he had not been attaohea. Said fine when made final 

ana 811 costs thereon shall be collected a8 in other criminal cases. 
Honorable Gee. H. Sheppard, page 2 (O-2395) 

Said fine and j&pent may be aet 8eide in vacation or at the aam 

or any subsequent term of the court for good aau8e ehown,.after~the 

witnees teetiflee or has been dlEoh8rged. The follovlng WOLFE ah811 

be written or printed on the faoe of euoh subpoena for out-county 

witnesses: "A dieobedienoe of this subpoena is punishable by fine 

not exceeding five hundrea a0u8r43, to be 00ileOtea 86 fines 8nd 

coata in other crlmln81 casea. I11 

Article 1030 of the Co&e of Criminal m00eaure provides in part, 

(LB follows: 

n+ * + The sheriff or constable shall receive the fo-llowing fees 

when the charge ie 8 felonyr 7. for conveying a witness 8ttkhed 

by him to any court, or grand jury, or in habeas corpus proceeding 

out of hia county, or when directed by the judge fmm ang other county, 

to the court where the case Is pending, * l * said aooount ehallaleo 

'chow, before 88id officer ah811 be entitled to cQnpensstlon for 

expenses of attachea witnesses, that, before Eitarting With 88id Witne8eee to the foreign court, * * l ." 

Theee statutea provide for, and clearly oomteniplate, that an attechment for a witness in a foreign county eh811 be dIrecta& to the sheriff, or 

other officer, of suoh foreign county. Plere ia no etatutory authority for 

the sheriff of the county in which the felony 088~ is pending to go outside 

the boundaries Whls county for i&is purpose. 

"At camaon law, a sheriff h8e no jurladiotion beyond the 

borders of his county. The Constitution of this State providee for 

this officer, giving to the Legislature the right to prescribk'hti 

duties. We have aearohed the statutes carefully, but find no act 

giving jurisdiction to the sheriff to eerve oapias beyond the limits 

of hie county; and hence the attsmpted arrest in *hia case was 

unlawful". JOIW V. STATE, 26 Tax. App. 1, 9 S.U. 53, 8 Am. St. R. 

454. 

In oonat.rulng Article 223 of the Code of Criminal Procedure, which 

authorizes any peace officer to execute 8 warrant of arrest In any county in 

this State, the Court of Crlmin8lAppeals of Texas, in the case of BEFGOBI V. 

STA'PE', 49 s.w. (28) 463, aeOlared: : 

?che opinion is expressed that the statutes quoted ana those to 

which reference has been made evidence the Intention of the Leglsl8ture 

to confine the jurisdiction of the sheriff to his oouuty, exoept insofar 

as the authority to execute warrants of arrest in any aounty of the state 

IS conferred by Article 223, C.C.P. * l * Article 223, C.C.P., authorizing 

the execution of a warrant of arrest by a sheriff under the conditions 

etatea in the 8rti010 in 8ny 00mq in the state, is not ae0ma to have. 

the effect to extend generally the jurisdiction of a sheriff beyond the 

borders of his county. * * *" 
Honorable Geo. H. Shepm, page 3 (O-2395) 

There being no etatute authorizing 8 eheriff to attaoh a witness 

out&de the bordere of hie county; abeent whioh he h8e no jurisdiction 

to do 80, it necessarily follows that he is entitled to no fees from the 

State, uotwithetapdlug he does actually bring a forelg8 wltatas before the 

court under an unauthorized attaobment. The matter of whether or not the 

district, judge fine6 the wltneee in euch situation would have no significance. 

Aaoordingly, you are reapeotfully 8dvieed that it is the opinion 

of this &eparimut that the sheriff would be entitled t0 no fees from the 

st8b3 andOr either Of the fad eitu8tiOZm deeoribed in JroUr letter. 

Trusting the above fully 8newere your inquiry, we remin 

Very truly you?, 

By /e/ Zollie 0. Steakly 

20111~ C. Steakly 

Asslst8nt 

ZCSZBS “as 

APPRovEDJuN ll,lg40 

Id Gerald c. uann 

ATRXU0EYGB'UERALOFTEXAS 

APPROVED 

OPIWIOIP COlMITTEE 

BY /e/!B.W.B. CHAIRUN