Honorable John C. Marburger
County Attorney
Fayette County
LaGrange, Texas
Dear Sir:               Opinion No. 0-3cJ62
                        Re: Where two or more subpoenas are
                             issued for wStnesses in two or
                             more misdemeanor cases against
                             the same defendant, and served by
                             the sherif;for constable at the
                             same tlme 2nd place, is the sher-
                             iff or constable serving same en-
                             titled to the usual mileage of
                             7&,? in each case, and related
                             questions?
           Your recent request for an opinion of this depart-
ment upon the questions as are hereln stated, has been receiv-
ed.
            We quote from your letter as follows:
            "I would appreciate your opi:ll.cn
                                             on the
    following questions at the earliest possible date:
          "1 . Where two or more subpoenas are issued
   for witnesses ln two or more misdemeanor cases
   against the same defendant, and served by the sher-
   iff or constable at the same time and place,,is the
   sheriff or constable serving same entltled to the
   usual mileage of 7 l/2$ in each case?
           "2. Where two or more defendants, not
   jointly indlcted, are arrested in two or more mls-
   demeanor cases at the same time and place, and are
   placed in ja11 on the same trip, 1s the sheriff or
   constable making such arrest and returning the
   prisoners',entitled to the usual mileage of 7 l/29!
   In each case in going to and returning to place of
   arrest?
          "3 . Where A, A, and C are each :arrestedin
   two or more misdemeanor cases at the saze time and
                                                       -   .




Honorable John 6. Marburger, page 2        o -3062


   place and A immediatelg'makes bond and Is
   released,,but B and C do not, and the sher-
   iff or constable therefore returned with A’s
   bond and B and C as prisoners to the jail of
   the County from which process Issued. Tti
   what mlleage fee is the sheriff or constable
   entitled in such a fact situation? Would the
   mlleage feesbe different in such a fact sltu-
   ation where all of the defendants were arrested
   In a County other than that from which the com-
   plaints issued?
           "4. Where one defendant is arrested in
   two-~ormore separate cases at the same tlme'and
    place, Is the sheriff or constable making such
    arrest and returning the prisoner entitled to
    the usual mileage of 7 l/26 in each case in
    going to and returning from the place of arrest?
    Would the mileage fee be different If such'de-
    fendant were arrested in a County other than
    that of the complaint issued?
          "I have checked Into these questions and
   I find that Art. 1065, C.C.P. provides as fol-
   lows:
          "'The following fees shall be allowed the
   sheriff or. other
                 .   peace
                     . _   officer performing
                                          .   the -
   same service In misdemeanor cases, to oe taxed
   against the defendant on conviction:
           nl*   l   * **


           rr;4. For taking and approving each bond,
   and returning the same to the courthouse when
   necessary $1.50.
           If!*'*+ **

          "'10. For conveying a prisoner arrested
   on a warrant or capias Issued from another County
   to the Court or jail of the county from which
   the process was issued,,for each mile traveled go-
   ing and"comlng,~by the nearest practicable route,
   twelve and one-half cents.
          "'11. For each mile he may be compelled
   for executing criminal process and summoning
   or attaching wftnesses, seven and one-half cents.
   For traveling in the service of process not other-
Honorable John C. Marburger, page 3         O-3062


   wise provided for, the sum of seven and one-
   half cents for each mile going and returning.
   If two or more persons are mentioned in the
   same writ or two or more writs in the same case,
   he shall charge only for the distance actually
   and necessarily traveled In the same. I
          "Seemingly the only cases that bear on
   the above sltuatlons are Bigham vs.-State, 275
   S.W. 147 and Rallwag Co. vs. Dawson, 7 S.W. 63.
   In the first case above mentioned the Court had
   this to say:
          "'In other words, the first witness served
   shall constitute the unit upon which the mileage
   is to be computed, with allowance of such addi-
   tional mileage as is necessarily traveled from
   where the unit witness is served in subpoenaing
   the other named.witnesses. This is the only
   limitation of the statute. It Is clear the Leg-
   Lslature meant that this limitation should only
   apply to the one case In which the two or more
   subpoenas or writs issued, and not to other and
   separate cases, although they might be against
   the same defendant and for'the same witnesses.
   In other words, the Legislature did not intend
   by this amendment that one case should help bear
   the expense of another because the sheriff hap-
   pened to be serving process in two or more cases
   at the same time; but It was Intended that each
   case should bear its own expense, and the compen-
   sation or fees due the sheriff for his services
   therein should be paid without reference to any
   other case that he might be serving process in at
   the same time and place, even though the process
   in each case be for the same witnesses.'
           "This case construes an old fee statute,
   but apparently the working of this statute was
   practically the same as the present Article
   1065 C.C.P. Itwould therefore be my oplnlon
   that the first question above asked should be
   answersd In the affirmative and that the sheriff
   or constable is entitled to seven and one-half
   cents for each mile necessarily traveled in the
   service of process in each case.
          "It is my oplnlon~that question No. 2 should
   also'be answered In the affirmative, that Is ttiat
   the sheriff is entitled to mileage in each case
Honorable John 6. Marburger, page 4          0-3062



    against each defendant even though said warrants
    of arrest are all executed in the same trip.
           "It is my opinion that question No. 3 should
    be answered as follows:
           "The sheriff or constable Is entitled to
   mileage In each case coming and going that he'
   has against A as well as a bond fee tn each case.
   In additlorithe sheriff wduld be entitled to"iiiile-
   age going and coming in each case against B and C.
   However, under section IO of Article 1065 C.C.P.
   should the arrests be made in a foreign County
   then the sheriff or constable would be entitled
   to his mileage in each case coirilng
                                      and going against
   as well as his bond fees. In'addition he would be
   entitled to mileage in each case-against B and C
   for going to the place of arrest, but only one
   mileage fee of twelve and one-half cents for each
   P??Fsonerreturned to the County from which the
   warrant was Issued regardltissof the number of
   cases that may be pending against each of said
   prisoners.
           "It is my oplnlon In view of the~abov6 stat-
   utes and cases that the sheriff or constable would
   be entitled to mileage of seven and one-half cents
   in each case coming and going If the arrests were
   made in the home County. However, should the ar-
   rests be made In a foreign County then the sheriff
   or constable would be entitled to a mlleage fee
   of seven and one-half cents in each case to the
   'placeof arrests and only one mtleage fee of twelve
   and one-half cents for each prisoner regardless of
   the number of cases against the prisoner that he
   brings back from the place of arrest to hLs home
   county.
           "I realize that Bigham vs. State, supra,
   had under conslderatlon present Article 1029
   C.C.P. as It then existed, but It appears to
   me that said Article applies only to felony
   cases, otherwise It could not be reconciled
   with Article 1065 C.C.P."
            We have carefully considered your letter and the
authorities cited thereIn, and call your attention to the fact
that the case of Blgham v. State, 275 SiW. 147, cited by you,
was reversed and appeal dFsmlssed In 280 5. W. 1062.
.   .




    Honorable John C. Marburger, page 5         o -3062



                With reference to,fees in felony cases, this de-
    partment held in,an opinion (Reports and Opinions of Attorney
    General, 1924-26,  page 248), "where there are a number of cases
    and the sheriff conveys the prisoners to jail and summons wit-
    nesses, he is entitled to mileage only for the number of miles
    actually traveled, and Is snot entitled to duplicate his mile-
    agesso'as to receive mileage for many times the number of
    miles actually trave1ed.I'
                                                            '-
                The case of Bigham v. Jones, 291 S.W. 842;~among
    other things, holds in effect, that a sheriff who conveys three
    prisoners to the county seat, two of whom he conveyed together,
    one'being indlcted for burglaryin thirteen cases and the bther
    being indicted for forgery In SIX cases, the'sheriff could not
    recover fees for mileage for each separate case, but only for
    miles actually traveled. This case further holds that the
    3hBrFff serving subpoenaes on wftnesses in numerous cases
    against the same defendant could not recover separate mileage
    on the basis of each case, but recovery was limited to'miles
    actually and necessarily traveled. (Al so see-the cases of
    Hogg , et al, v. State, 48 S. W. 580; and Gulf, C. & S. F. Ry.
    co., et al, v. Dawson, 7 S.W. 63.)
               We have been unable to find any case where the Ap-
    pellate Courts have construed Art. 1065, C.C.P. with reference
    to the ,questionshere involved. The proper construction of
    said statute is very difficult. Therefore, our answers to your
    questIons are not free from doubt, for the reason that the
    statutory provisions considered herein are more or less vague,
    uncertain and indefinlte, and susceptible to more-than one
    construction.
               In answering all of your questions, it must be
    borne in mind that they each relate to charges for mileage in
    misdemeanor cases which are collected from the defendant only
    upon his final conviction.
               Therefore, in answer to your first question, you
    are respectfully advised that it is the opinion of this depart-
    ment that the same should be answered in the negative. In this
    connection, you are further advised that we belteve the proper
    procedure to be followed in such instances is to charge separ-
    ate mileage for each case and the officer executing the sub-
    poenas should make his returns accordingly. This for the
    reason the defendant may be convicted in only one case and ac-
    quitted In the other cases, or they may be dismissed. If this
    practice is not followed and the charge for mileage should be
    shown only.on the officers return in one case and the defendant
    should be acquitted In that case, or If it should be dlsmlssed,
    the question would arise as to whether any mileage could legally
                                                      .   .




Honorable John C. Marburger, page 6          0-3062



be collected from the defendant upon his conviction in one of
the remaining cases. We do not believe that the Legislature
intended in such a situation that the officer should lose his
charge for mileage, but that he may collect from the defendant
such charge upon his conviction in any one of his cases, but
having collected such charge he may not collect for the same
service in any other case In which he may be convicted.
          -In answer to your question No. 2, we have concluded
that separate mileage charge may be collected from each defend-
ant, upon his final conviction In only one case. To give S&z-
tlon 11 of Article 1065 any other construction would lead to
absurdities; be lmpract1cable and result in injustice. ThlS
construction is consistent, we believe, withthe legislative
intent as expressed in said.sectfon when construed 1n its en-
tirety; The officer should, as suggested In answer to'your
first question, charge full mileage In his return on each wsr-
rant-served, but when the offxcer~has collected mileage In one
'case,he may not collect mileage charge from the same defend-
ant in any other case.
           In answer to your question No. 3, you are advised
that it is our opinion that the same mileage fee should be
taxed against A as is taxed against B and C. -The fact that he
gave bond does not make any difference. A, B, and C should
each be taxed the usual mileage charge of seven and one-half
cents per mile. This charge-would not be different if all the
defendants were arrested lnr~acounty other than that of the
county where the warrants were issued. Section 10 of Article
1065 applies only In cases where the~defendant Is arrested in
a county other than the county from which the warrant was is-
sued and is by an officer of the county where the arrest is
made conveyed to the county where the case Is pending.
           We answer your question No. 4 in the negative. What
we have heretofore said in answer to your first question with
reference to charging mileage on each subpoena applies to war-
rants under the factual situation stated. When the defendant,
after conviction, is taxed with mileage in one case, he may not
be again taxed with mileage in any other case in which he may
be subsequently convicted.
           Trusting that the foregoing fully answers your In-
quiry, we are
Honorable John C. Marburger, page 7          0-3062



                              Yours very truly
                            ATTORNEY GENERAL OF TEXAS


                              By s/Ardell Williams
                                   Ardell Willitims
                                         Assistant
AW:EP:wc

APPROVED FEB 21, 1941
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee by s/&D    Chairman
