    OPFKE   OF THE ATTORNEY   GENLlUL.   STATE OF TEXM

    JOHN     CORNYN




                                                November 30,200O



The Honorable Tom O’Connell                              Opinion No. JC-03 12
Criminal District Attorney
Collin County Courthouse                                 Re: Responsibility of a sheriff for taking custody
210 South McDonald, Suite 324                            of a person hospitalized for injuries sustained
McKinney, Texas 75069                                    while being arrested by law enforcement officers
                                                         of a different jurisdiction (RQ-0263-X)

Dear Mr. O’Connell:

         You have asked this offtce when a sheriff is responsible for taking custody of a prisoner
hospitalized as a result of “an injury or illness that was sustained during [the] arrest” by another law
enforcement agency.’ In our view, your question is answered by article 2.18 ofthe Code of Criminal
Procedure and by the interpretation this office gave that statute in Attorney General Opinion DM-
313. Briefly, a prisoner becomes the sheriffs responsibility “[wlhen [he] is committed to jail by
warrant from amagistrate or court.” TEX. CODE CRIM. PROC. ANN. art. 2.18 (Vernon 1977). “Once
a magistrate has issued a commitment order, the duty to incarcerate the prisoner, along with the
necessary cost incident thereto, falls upon the sheriff.” Tex. Att’y Gen. Qp. No. DM-313 (1995) at
2 (emphasis added). The sheriff has no discretion to refuse to take such a prisoner into custody and
“cannot avoid the cost of his duty by refusal to undertake it.” Id. The prisoner is the sheriffs
responsibility as soon as the commitment order issues because the sheriff must “safely keep all
prisoners committed to the jail by a lawful authority, subject to an order of the proper court.” TEX.
Lot. GOV’T CODE ANN. 5 351.041(a) (Vernon 1999).

         As we understand it, your question arises from a situation in which a prisoner has been
arrested by another law enforcement         agency and has, as a result of that arrest, required
hospitalization.  You note that, pursuant to article 104.002 of the Code of Criminal Procedure, the
county is liable for “all expenses incurred in the safekeeping ofprisoners confined in the county jail
or kept under guard by the county.” TEX. CODE GRIM. PROC. ANN. art. 104.002(a) (Vernon Supp.
2000). However, you assert, “[t]he article does not require the sheriffto assume custody ofprisoners
that have been taken to medical facilities by other agencies.” Request Letter, note 1, at 1.

       We agree that the mere fact that a person has been arrested by some law enforcement agency
within Collin County’s jurisdiction does not make that person a prisoner of the county. See Tex.



          ‘Letterfrom HonorableTom O’Connell,to HonorableJohnComyn,TexasAttorneyGeneral(July31,200O)
(on file with OpinionCommittee)[hereinafterRequestLetter].
The Honorable Tom O’Connell         - Page 2        (X-0312)




Att’y Gen. Op. No. MW-52 (1979) at 2,3 (sheriffhas no duty to confine person in countyjail solely
for violation of municipal ordinance). However, when a magistrate issues a commitment order
directing that the sheriff “receive and place in jail the person so committed,” TEX. CODE GRIM. PROC.
ANN. art. 16.20 (Vernon 1977), the prisoner forthwith becomes the responsibility of the sheriff.
Article 2.18 of the Code of Criminal Procedure provides, “[wlhen a prisoner is committed to jail by
warrant from a magistrate or court, he shall be placed in jail by the sheriff. It is a violation of duty
on the part of any sheriff to permit a defendant so committed to remain out ofjail[;]          he shall so
guard the accused as to prevent escape.” Id. art. 2.18; see also Tex. Att’y Gen. Op. Nos. JM151
(1984) at 2 (county jail is required to accept state statute violators after magistrate has committed
them to jail); DM-3 13 (1995) at 2 (sheriff cannot avoid cost of incarcerating prisoner by refusing to
take custody after commitment order is issued).

         In Attorney General Opinion DM-3 13, the question was posed whether the Ector County
sheriff could refuse to accept prisoners arrested by the Midland city police for violations of state
statutes after a municipal judge had issued a commitment order for those prisoners. On the basis of
article 2.18 of the Code of Criminal Procedure, the opinion answered that question in the negative.
It noted that a refusal to accept such prisoners “is not an exercise of discretion, but is rather,
according to the plain language of article 2.18, a violation of duty. The sheriff cannot avoid the cost
of his duty by refusal to undertake it. Accordingly, once the commitment order is issued, the
responsibilityfor maintaining these state lawprisoners devolves upon the county.” Tex. Att’y Gen.
Op. No. DM-3 13 (1995) at 2 (emphasis added).

         You suggest that “when a commitment order does exist it is unclear as to how the sheriffs
duty under Texas Code of Criminal Procedure Art. 2.18 should be interpreted.” Request Letter,
supra note 1, at 2. We disagree. In our view, the clear import of the statutory language, and of its
interpretation   by Attorney General Opinion DM-313, is that the prisoner is the sheriffs
responsibility from the time of the issuance of the commitment order. “It is a violation of duty on
the part of any sheriff to permit a defendant to remain out ofjail[;]     he shall so guard the accused
as to prevent escape.” TEX. CODE GRIM. PROC. ANN. art. 2.18 (Vernon 1977). This duty does not
commence, as you suggest, “only when a prisoner is brought to the jail.” Request Letter, supra note
 1, at 2; see Tex. Att’y Gen. Op. No. H-169 (1973) at 2 (duty of sheriff to see that prisoners
committed to jail by magistrate in city outside county seat are transported to countyjail). Rather the
duty and its attendant costs devolve upon the county “once the commitment order is issued.” Tex.
Att’y Gen. Op. No. DM-313 (1995) at 2.
The Honorable    Tom O’Connell     - Page 3       (JC-0312)




                                        SUMMARY

                         A person arrested by a law enforcement agency other than the
                 sheriffs department, and hospitalized as a result of that arrest,
                becomes the responsibility of the sheriff, pursuant to article 2.18 of
                the Code of Criminal Procedure, upon the issuance by amagistrate of
                a commitment order directing that the sheriff “receive and place in
                jail the person so committed.” See TEX. CODEWM. PROC.ANN. arts.
                2.18, 16.20 (Vernon 1977).




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
