                   February 20, 1950

Eon; Robert S; Calvert Oplniau noi V-1008;
C~Dtl'OllOr of Public
Ac&unta                Re: The payment of fees of the
Austin, Texas              Sheriff of Walker County for
                           conveyinga primmer fraa
                           the Rmtsvllle penitentiary
                           to a Matrlet Court ia Trav-
                           is county for ttial for fel-
Dear Sirr                  ony.

         Your Pequeet for    m opinion is as follows:
          wxts DfJpartmenthas received a c1al.mfor
     fees in a felony a888 submitted by the Sheriff
     of Walker County; Said fees are olaimed by
     the aherlff for conveying a primmel. from the
     Runtsville panitentiaryto At&In where said
     pr+n~er was wanted for the offense of burgla-
     ry. The Sheriff of Ualkm County performed
     this service due to his having reoeived a
     bench warrant addressed to him and issued by a
     Mstrlct J
              -~i~"~e~~~~~t~~~~~~~~-
     IS county.
     swers to the following questionar
          '1; ‘Would this bench warrant be a proper
     order authorlzIagsaid shelrlffto  p6s0=   the
     service of conveying the prisoner out of the
     sheriff's comty to some other county?
          "2; Walker County pays its county offi-
     cers on a fee basis; Would conveyanaefees be
     properly payable to the Sherlff of Walker Corn-
                                               .,. _~
     ty uuder the provisions of Article 1030, C.C.P.
     for this fJertice?”
          There I.890~statute in Texas autho?ixing the is-
suance of 'bench warrants" but at common law and in prac-
tice a warrant issued from the.bench or oonrt to compel
the appearance of a person In a case is denominatedas "a
bench warrant'i" I&XParte Lowe, 251 S;W; 506 (Tex. Crini
1923) (recognleingthe authority of the Strict Judge of
Hon. Robert S; Calvert, page 2 (V-1008)


Hill county to 1ssuc 8a -
                        Dencn     _ -.to the sheriff of
                            - warrant
MoLeman County dim sctlng him to deliver a person in his
custody to the-sheriffof RI11 County); Gaines v; State,
53 S;W. 623 (Tex; Crimi  1899) (recognizingthe authority
of the District Couzrtto issue a bench warrant to the
penitentiaryauthorities Uirectlug them to deliver a
prisoner for trial).

          Walker County has a population of 19,868 lnhab-
itants according to the last precedingFederal Census and
its county officers (with the exception of the sheriff)
are compensatedon a fee basis; Therefore, the sheriff
may receive felony fees due him from the State. A; G.
Opinion V-748.
          There were cast in Walk? County 2,551 votes
in the last presidentialelection. Therefore, the provi-
sions of,Article1030; V.C.CiP., are applicable to Walker
county; Article 1030, Q;C;C.P., provides in part as fol-
lows:
           "In each county where there have been
     cast at the preceding presidentialelecttin
     less than  3000 votes, the sheriff or muSta
     ble shall receive the following fees when the
     charge is a felony:
           "1; FOP executing each warpant of ameat
     or caplas, or for making arrest without war-
     rant, when authorizedby law, the sum of one
     dollar; and five ,centsfor each mile actually
     and necessarilytraveled in going to place of
     arrest, and for conveying the prisoner or
     prisoners to jail, mileage, as provided for in
     subdlvislon4 shall be allowed; provlded,,that
     in counties that have a population of less
     than forty thousand inhabitants,as shown by
     the preceding Federal census, the followlug
     fees shall apply? For executing each warrant
     of arrest or caplas, or for lpaklngarrest
     without warraut, when authorizedby law, three
     dollars and fifteen cents for each PcLleaotu-
     ally and necessarilytraveled in going to
     place of arrest, and for conveyingprisoners
     to jail, mileage as provided for in subdivi-
     siou 4 shall be allowed: and one dollar shall
     be allowed for the approval of a bond;
Ron. Robert S; Calvert, page 3 (Q-1008)


         “4. For removing a prisoner, for each
    mile going and coming, Including guards and
    all other expenses,when traveling by rail-
    road, ten oents; when traveling otherwise
    than by railroad, fifteen cents; provided,
    that when more than one prisoner is removed
    at the ssme time, In addition to the fore-
    going, he~shall only be allowed ten cents a
    lllile
         for each additional prl.soner.*
          In discussing a similar question it was held
in Attorney General Opinion Bo. 3011, dated December 13,
1937:
         “A bench warrant Is a common law process
    not defined by the Statute of Texas, and al-
    though the courts in Oxford vi Berry, 170 R.W.
    83, 204 Hlch, 197, and in k Parte Lowe, 251
    S;W. 506, have defined a benah warrant as a
    warrant of arrest, they further say that it
    is sometimes used to br.inga convict confined
    In the penitentiaryto trial in another case,
    and we are of the opinion that a bench warrant
    is not contemplatedas being a warrant of ar-
    rest or caplas as provided in Subdivision 1 of
    Article 1029, but it is merely an order by the
    Mstrict Judge In cases such as those submit-
    ted In your question for the sheriff to pro-
    ceed to a certain place snd get a prisoner
    whom he has already had in custody and upon
    whom he has already served the capias or war-
    rant of arrest and returned the body of such
    prisoner to the court issuing the order; It
    is not an ordinary warrant,of arrest directing
    the sheriff to arrest the person named therein
    where ever found, but on the other hand it Is
    an order directed to the ofSicer or perscn hav-
    ing custody of the prisoner ordering such offi-
    cer or other person to deliver the prisoner to
    the sheriff for the purpose of conveying Nm
    to the court Issuing the warrant;
         I’Incases where the sheriff has not had
    the prisoner In his custody on the same charge
    prior to the issuance of the bench warrant,
    then it is necessary for the sheriff to pro-
    ceed with a caplas as well as tith a bench
    warrant to the penitentiaryOP other place for
    the purpose of arresting a prisoner, and in
Ron; Robert s. Calvert, page 4 (v-1008)


    cases of this kind we are of the opinion that
    he would be entitled to only five aenta per
    mile while going to the place of arrest, but
    in cases such as the question submlttedby you
    where the sheriff has already taken the prlson-
    er into custody and has served the caplas upon
    him, and then the prisoner has been taken to
    some other jurisdictionand it became necessary
    for the sheriff to proqeed under a bench war-
    rant to get the prisoner and bring him to the
    court issulng the bench warrant, then in that
    event he is not going to the place of arrest,
    but is merely going to convey a prisoner to the
    court, and we are of the opinion that the sher-
    iff is entitled to mileage as provided In Sub-
    division 4 of Article 1029,
         “The Supreme Court of Texas in the case
    of Blnford v. Robinson, 244 S.Wi 807, has held
    that the sheriff is entitle3 to ten cents per
    mile for himself and ten cents per ml18 for
    the first prisoners,making a total of twenty-
    cents per mile when traveling by train with
    the prisoner.  Therefore, It would necessarily
    follov that the sheriff when traveling other-
    wise than by railroad would be entitled to
    fourteen cents for himself and fourteen cents
    for the prisoner POP the mileage traveled with
    such prisoner.
         “The fact that this constructionhas been
    placed upon this statute for a number of years
    by the Comptrollers8Departmentand the fee of-
    flcers have acted under such aonstructionover
    a long period of time, and the Legislatureal-
    though charged with the knowledge of such con-
    struction,have not amended or in anyvise chang-
    ed the wording of such statute, leads us to the
    conclusionthat it was the legislativeintent
    that this constmxtion be plaaed upon this act.
         ‘%e are, therefore, of the opinion that an
    officer while acting as set forth in the ques-
    tion propoundedabove should draw fees or mile-
    age as provided in Subdivision 4 of Article
    1029. For example, a sheriff in executing a
    bench warrant for removing prisoners confined
    in the State penitentiaryto another county to
    be tried on a felony charge should receive, when
    traveling otherwise than by railroad, fourteen
Eon; Robert S; Calvert, page 5 (V-1008)

         cents per mile while going after such prisoner
         and fourteen cents for himself and fourteen
         cents for the prisoner, making a total of twen-
         ty-eight cents per mile while returning the
         prisoner to the (Jurisdictionof the court issu-
         ing the warrant.
          It was held in Attorney ffeneralOpinion Ao.
2967, dated July 25, 1935, that a sheriff would be en-
titled to be paid mileage fees for the execution of a
bench warrant issued by a Justice Court to a sheriff of
another county. It was held in Attorney General Opinion
addressed to Ron. lgooreLynn, State Auditor, August 4,
1932, that a sheriff acting under the authority of a
bench warrant would be entitled to mlleage fee6 under Ar-
ticles 1029 and 1030, VXX .P., for going to and from
the State Pen%tentiaryat Huntsville to convey a prison-
er back to the county seat to answer a charge of InsanIty
pending against himI
          In answer to your first question you are there-
fore advised that the bench warrant referred to by you
was a proper order authorizing the sheriff to perform the
service of conveying the prisoner to Travis County?
          In view of the above mentioned Attorney General
Gplnions you are advised that the sheP%ff is entitled to
be paid mileage fees for the execution df the bench war-
rant under the provisions of Article 1030, V;C.C.P.


              The sheriff of Walker County is entitled
         to mileage fee8 under the provisions of Article
         1030, V.C;C;P;, for the execution of a bench
         wsrrant issued by a Mstrict Court of another
         oounta directins this sheriff to convev a mls-
         oner from the &ate penitentiaryto appear-for
         trial in a felony case; Gaines vi State, 53 S;
         W. 623 (Tex. Grim. 1899); IpcP t L     9
                                        G.’ODiZon2E .
         SiW. 506 (Tex. Grim. 1923): A.ar
         2967 dated July 25, 1935;-A. 0. GpikL.onRo.
         3011 dated December 13, 1937.
                                      Yours very truly,
APPROVED:                               PRICE DARIRL
                                      Attornev General
J. C. Davis, Jr.
county     Affairs   mvisian

Charles D. Mathews
Executive Assistant
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