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                                          January 12, 1967

         Honorable Wallace Shropshire                     Opinion No. M-5
         County At,torney
         Travis County Courthouse                         Re:   Does evidence obt~ained
         Austin, Texas                                          by an arresting     officer
                                                                become lnadmlsslble       by
                                                                reason of the arrested
                                                                person being taken
                                                                before a magistrate by
                                                                an officer   other than
         Dear Mr. Shropshire:                                   the arresting    officer?
                In your opinion     request      you state:
                      “A request is made for an opinion from your
                office  concerning the Interpretation  of Article
                14.06 of the Code of Criminal Procedure, which
                states as follows:
                      “In each case enumerated in this Code, the
                person making the arrests shall immediately take
                the’ person arrested before the magistrate who
                may have ordered the arrest or before some magls-
                trate of the county where the arrest was made
                without an order.    The magistrate  shall Immediately
                perform the duties described    in Article 15.17 of
                this Code.
                       “This opinion is requested because of the
                following   facts:   The Sheriff’s    Department of
                Travis County and the Police Department of the
                City of Austin during the night shift of their
                personnel have the occasion to make arrest of an
                accused during a period of time In which there
                is no magistrate    available   in the morning, but
                because the night, shift goes off duty prior to
                the availability    of the magistrate,    an accused
                is taken before a magistrate       by an officer  other
                than the arresting    officer.”
                Your specific     questions      read as follows:
                       “( 1) Under the above circumstances,    as
                outlined,    is the State in any way prejudiced
                in the criminal proceeding against the accused?
                                              - 18-
Honorable   Wallace   Shropshlre,   page 2 (M-5)


            “(2)  Under the above circumstances,   as
     outlined,   would any physical  evidence acquired
     by the arresting   officer  become inadmissable
     by reason of the fact that the arresting     officer
     is not the one who takes the accused before the
     magistrate?”
      Article   14.06, Texas Code of Criminal Procedure, and
Rule 5A, Federal Rules of Criminal Procedure, are similar in
purpose and wording.      This office     found no construction  by the
courts of either of these statutes regarding the exact questions
which you propounded,      It Is the opinion of this office,      however
that under the circumstances        set forth in your letter,   an office
other than the arresting      officer   may take an accused before the
magistrate    if otherwise done in compliance with said Article
14.06. We therefore      answer both of your questions in the nega-
tive.
                              SUMMARY

            An officer other than the arresting    officer    may
     take an arrested person before the magistrate,        if
     otherwise done in compliance with the provisions         of
     Article   14.06, when a magistrate is not available       at
     the time of the arrest and prior to the time a magis-
     trate becomes available,   the arresting   officer    goes
     off duty.

                                             very/




REO’,lk
Prepared by Robert E. Owen
Assistant Attorney General
APPROVED:
OPINION COMMITTEI?
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
R. L. Lattimore
Robert Norris
Lonny Zwiener
John Banks
Staff Legal Assistant
A. J. Carubbi, Jr.

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