                                                                    253




          OFFICE   OF   THE   ATTORNEY     GENERAL      OF TEXAS
                                 AUSTIN




aonorabls 1. I;.MaClaln
31striot Attorney
Gaorgatoun; Texa8

Dear Slfr




            Your letter requrrtlng ee opini
matter   ir l8 fO11OW8r




                                         present when    the OS88
                                          ante& thst LO be tt.iad
                                              p8 or t&o Cede ot
                                            ld eoontro1.    sh8t
                                                                 254


tIo5orable   W. Ii.   Moclain,   pw   2



             Vurstatute directs that the Sheriff shall _
       sreoute the same; and not some other peaoe oiflosr
       or city marshal. I thererore'doubt ii we 0fm read
       into the statute the word constable or *other:$oaoe
       orri0e   as contended by f&r. Kodges. Pleas&'sdvise
       U8 On the above question, and I will appreoiate the
       IlamB.”

      Article 4-41,V. A. C. C. P., d&in88 a 08pAa8 88 *a writ
Issued by the oourt or olerk, and directed *To any Sheriff or
the State or Texasr oommandlng him to arrest a person aooueed
or an orr0n.90and bring him berore that court forthwith, or on
a day or at a term etated In the writ.*

      Article 453, V. A. C. C. P., state8 that a oapias map be
exeoated by any oonstable or other peace offioer. Artlob 36,
V. A. C. C. P., states that city marshal8 are pa08 orricers.
      Article 918, V. A. C. C. P., whloh 18 found in Title 11
concerning prooedure In the juatlos and oorporatlon courts,
8t8tBs, "Ii the defendant be not in OU8tOdy when Judgment i8
rendered, or ii he esoapes mm oustody,thersert.er,a oaplae
shall fsaue r0f hi8 arrest and oonri’n6mentin jail until he
is legally dlsoharged.*
       In the ease or Er parte Fernandez, 57,s. W. (2d) 576,
the Court oi Criminal Appeals held that Itrtiole920, C. C. P.,
applied to a oa6e of oonviotion in the justloe gourt rather
than Article 793, V. A. c. c, P., ror the reason that Article
920 had reference to judgments or conviotlon in oriminal ao-
tions before a justloe  oi the eaoe while Article 793 had
referenoe to judgments 0r convf otion in orimlnal aotions in
oourta  of higher jurisdiotion. The oourt used the following
language, on page 579:
           'The chapter in which artiole 920, eupm,
       appears ia one having rehavmoo to a judgment
       0r oonviotion in a oriminal action belore a
       justloe 0r the peaoe, From what has been said
       it Is apparent that the statutory enaOtment8
       make a dletinotion on the aubdeot in hand with
       rerersnoe to the oonvlotion of a mirdrmeanor
       before the justioe of the peaoe and the oon-
       viotion of a misdemeanor in oourtr of higher
       jurisdiation. . .*
       .

                                                                                255

    ‘donorableW. IS.XoClaln,   page 3


          Polloulng the reasoning of the above quoted 08188,it fr
    .our opinion that Article 913, siupra,would apply to a Oapias
     Issued by the juetloe court rather than Artiols 788, V.A.C.C.P.
         A oaplaa pro rine has been derined aa a writ r -.I ing In
    behalr and ror the benefit 0r a goverzzental agenod””
                                                       , *to2
    oolleotion or tine and mean8 literally, you take,,fortho fine."
    See Word8 and Phraemt!,Vol. 6, page 60.  Thersfom, a oapiaa
    pro ri56 ir in reality a special type or warrant or arrest.
          One or the requieltes ror a warrant ireued by the juetioe
    of the peaoe a8 eet out by Artiole 885, V. A. c. C. P., Is that,
    *It 8hall be dir‘eotsd to the proper rherlif, oonstabla or fmme
    other person name4 therein.* Therefore, it 18 Our opinfoh that
    the jud.loe  of the peaoe may, ii 8% desirer to do so, lesue the
    aapIa@ pro fine In the name or EthelState of Texaae, and dlreot
    it to the elty marehal.
          Xi the $l8tiOe Oi the    aoe dirootr the oa iae to the oity
    -mares                      5" would be authorizei to 8OXVO it.
                rugh otty nkarsha
    Ho~~ver,~the’juidioe   of the peaoe ia dot required to dixeot the
     aapiar to the oity marshal ii he doe8 not iaeelit  to do 80, but
     he may direct the oaplar to "the proper sherifi, o0Sl8tablO or
    ,aome other person named therein * as provided by Utiole 885,
    rupra ,

                                               Your8   very     truly,

                                          A!FJ!ORNiCY Gi3lWAL      OF ‘l’%xAs




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