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DAN MORALES
 ATTORNEY
      GENERAL                                   Janltaty
                                                       9,199s


     Honorable John T. Montford                        Opinion No. DM-3 13
     Chair
     Fiice   committee                                 Re: Whether a county is required to accept
     Texas State Serrate                               warrantless arrestees from a municipal police
     P.O. Box 12068                                    department, and related questions (RQ-606)
     Austin, Texas 78711

     Dear Senator Montford:

             In view of a dispute between the City of Odessa (the “city”) and Ector County (the
     “county”) as to who is responsible for incarcerating certain persons arrested by the city
     police for the violation of state criminal provisions, you have asked this office a series of
     questions.

             You ask first whether, if a city police officer arrests a person for violating a state
     crimkal statute and a magistrate issues a commitment order for the person, the county is
     required to incarcerate the person. In our view, Attorney General Opinion JM-15 1 (1984)
     and article 2.18 of the Code of Criminal Procedure both answer this question in the
     affirmative.

               Article 2.18 of the Code of Criminal Procedure provides that “[wlhen a prisoner is
     committed to jail by warrant from a magistrate or court, he shall be placed in jail by the
      sheriff.” To permit such a prisoner to remain out of jail “is a violation of duty on the part
     of [the] sheriff?’ Accordingly, Attorney General Opinion JM-151 held that a county jail
     was required to accept state statute violators atIer a magistrate had committed them to the
     jail. JM-151, at 2.’

            Your second question concerns whether a municipal judge may issue such a
     commitment order, particularly when the offense charged is a class A or B misdemeanor.
     The warrant of commitment is defined by article 16.20 of the Code of Criminal Procedure,
     which further stipulates its requisites. According to article 16.20, “A ‘commitment’ is an
     order signed by the proper magistrate directing a sheriff to receive and place in jail the
     person so committed.”


               ‘Attorney General Opinion Jh4-151 did not overrule, and this opinion should not be construed to
     overrule, Attorney General Opinion MW-52 (1979), which held that a sheriff has no duty to contine a
     person in the county jail solely for the violation of a municipal ordinance




                                                  p,   1665
Honorable John T. Montford - Page 2       (DM-3 13)




        “Magistrate” is defmed by article 2.09 of the Code to include, inter ah-z, “the
justices of the peace, the mayors and recorders and the judges of the city courts of
inwrporated cities or towns.” Acwrdingly, a municipal wmt judge is a magistrate for the
purposes of article 16.20.

        It has been suggested that municipal court judges, however, are not “proper”
magistrates, and therefore lack power to issue enforceable commitment orders, because
they cannot try class A and B misdemeanors. The term is not defined in the statute.
However, reading article 16.20 in its entirety, we are satisfied that “proper” refers to
venue only. One of the requisites of the commitment order is “[w]hen the prisoner is sent
out of the wunty where the prosecution arose, the warrant of wmmitmem shall state that
there is no safe jail in the proper county.” In our view, reading this requirement together
with the reference to a “proper magistrate,” a proper magistrate is one who holds office in
the proper wunty. Accordingly, we find no basis for the argument that municipal judges
may not issue wmmitment orders for persons accused of class A or B misdemeanors.

        You ask, finally, who is responsible for the cost of incarceration if a municipal
court judge issues a wmmitment order and the sheriff &&es to take custody of the
prisoner. We believe that Attorney General Opinion JM-15 1 and article 2.18 answer this
question as well. Once a magistrate has issued a wmmitmem order, the duty to
incarcerate the prisoner, along with the necessary cost incident thereto, falls upon the
shelifr

        Attorney General Opinion JM- 1009 leads to the same conclusion. In that opinion,
the question was posed whether a city or a county was responsible for the maintenance of
prisoners who had violated city tra5c laws that implementw article 6701d, V.T.C.S. This
05ce answered:

          Because persons incarcerated for violating municipal tragic ordi-
          nances that implement article 6701d are considered state statute
          violators, the city is relieved of its obligation to provide for the
          maintenance. of such prisoners once they are accepted for
          incarceration by the sheriff of the county.

N-1009    (1989) at 6.

        In your hypothetical, the sheriff has not accepted the prisoners. However, the
refusal to do so 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 refitsal to undertake it. Accordingly, once the commitment order is issued, the
responsibility for maintaining these state law prisoners devolves upon the county.




                                         p.   1666
Honorable John T. Montford - Page 3 (DM-3 13)




                                  SUMMARY

                If a city police officer arrests a person for violating a state
          staMe and a magistrate issues a commitment order for the prisoner,
          the county is required to incarcerate the prisoner. A municipal court
          judge is a proper magistrate to issue such an order if he holds 051x.
          in the proper county for venue purposes. Should the sheriff reikse to
          take custody of the prisoner, the wunty is responsible for the
           prisoner’s maintenance.




                                                    DAN MORALES
                                                    Attorney General ofTexas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James Tourtelott
Assistant Attorney General




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