Honorable Gee.ME.Sheppard

Comptioller of Public Accounts Austin, Texas
Dear Sir: Re: OpinionNo. 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 inhabitantsentitled 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 iepending, and instructs the sheriffto 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 otherwiseadopts the same~~procedure,with which the sheriff complies.
Article 481 of the Code of Criminal Procedure reads a8 followsr
"If a witness summoned fromwithout the county refuse to obey a subpoena,he.shallbe 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 aefanltingwitness to appear et once or at the next term of eaid court, In the discretionof~the judge, to anewer for such defblt. The courtmay cause to be iesnedat the came time an attachment for Ei8id Wit1~%38,

direotd t0 the~proper county, co-ding tie officer towhom saidwrit la directed to take saidwitneee into custody ax@

before tzs!t said court at the time named in Bald writ; fnwhich

888 shall receive no fees, unless it appeara to the aourt that such disobedience IS eXcuE8ble,when thewltneas m&y recaive the same pay as ifhe had not been attaohea. Said fine when made final ana 811 costs thereon shallbe collected a8 in other criminal cases.Honorable Gee. H. Sheppard, page 2 (O-2395)

Said fine

### and j&pent maybe aet 8eide invacation or at the aam or any subsequent term of the court for good aau8e ehown,.after~the witnees teetifleeor has been dlEoh8rged. The follovlngWOLFE ah811 be written or printed on the faoe of euoh subpoena for out-county witnesses: "A dieobedienoeof this subpoena ispunishableby fine not exceedingfive hundrea 

### a0u8r43, to be 

### 00ileOtea 86 fines 8nd coata in other crlmln81 casea. 

### I11 Article1030of the Co&e of Criminal 

### m00eaure provides in part, (LBfollows:

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 inhabeas corpus proceeding out of hia county, or when directed by the judge fmm ang other county, to the courtwhere the case Is pending, * l * said aooount ehallaleo 'chow, before 88id officer ah811be entitled to cQnpensstlon for expenses of attacheawitnesses, that, before Eitarting 

### With 88idWitne8eee to the foreign court, * * 

### l."
Theee statuteaprovide 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 iano etatutoryauthority for the sheriff of the county inwhich the felony 088~ is pending to go outside the boundariesWhls county for i&ispurpose.

"At camaon law, a sheriffh8e no jurladiotionbeyond 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 jurisdictionto the sheriff to eerve oapiasbeyond 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 authorizesany 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 referencehas been made evidence the Intentionof the Leglsl8ture to confine the jurisdictionof the sheriff to his oouuty, exoept insofar as the authority to executewarrants of arrest in any aounty of the state IS conferredby Article 223, C.C.P. * l * Article 223, C.C.P., authorizing the executionof 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 jurisdictionof a sheriffbeyond 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; abeentwhioh he h8e no jurisdiction to do 80, it necessarily follows thathe is entitled to no fees from the State, uotwithetapdlughe does actuallybring a forelg8wltatas before the court under an unauthorizedattaobment. The matter of whether or not the district,judge fine6 thewltneee in euch situationwould have no significance.

Aaoordingly,you are reapeotfully 8dvieed that it is the opinion of this&eparimut that the sheriffwould be entitled t0 no fees from the st8b3 andOr either Of the fad eitu8tiOZmdeeoribed in JroUrletter.

Trusting the above fully 8newere your inquiry,we remin Very truly you?,

By /e/ Zollie 0. Steakly

20111~ C. Steakly

Asslst8nt 

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APPRovEDJuN ll,lg40
Id Gerald c. uann ATRXU0EYGB'UERALOFTEXAS APPROVED OPIWIOIP

COlMITTEE BY /e/!B.W.B.

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