Hon. George H. Sheppard            Opinion No. O-4088
Cg;EW&,ler of Public               Re:    Are the fees provided for
                                   under H.B. 411, 47th Leg., a
Austin,     Texas                  proper charge against the appro-
                                   priation   for the Govfrnor’s Law
                                   Enforcement Fund where the sher-
                                   iff travels to a point outside
                                   the State of Texas and obtains
                                   and returns’ a prisoner to his
                                   county with or without requisi-
Dear Sir:                          tion by the Governor?
            In your letter   of October 1, 1941, requesting an opin-
ion of this department, you state that you have a claim by the
Sheriff   of Oeona, Texas, for mileage, per diem, etc., for re-
turning a prisoner from Silver City, New Mexico, incurred in
traveling   from the State line to Silver City, New Mexico, and
returning thereto.     You further state that the Sheriff traveled
without requisition,    presumably ‘on waiver, and desire this de-
partment to answer the following      question:
          When a Sheriff travels     to a point outside
     the State of Texas and obtains and veturns a pris-
     oner to his county, with or without requisition    by
     the governor, are the fees provided for under House
     Bill 411 a proper char.ge against the appropriation
     for the Governor t s Law Enforcement Fund?”
          Our attention is called to House Bill       No. 411, Acts
of the Regular Session of the 47th Legislature,       which recent
enactment raises your question.
            In order to answer the above question is it necessary
that we examine the provisions       of House Bill No. 411, 47th Le is-
lature, which Act makes no reference       to Articles   1005 and 100 8
of Vernon’s Code of Criminal Procedure providing a method by
which an officer    or person is authorized to go outside the boun-
daries of the State in securing and#returning fugrtives          from
justice,   with the latter   Article   authorizing   th= officer   or per-
son so commissioned by the Governor to receive as compensation
the actual and necessary traveling       expenses.    These statutes were
involved in the case of Brightman, Sheriff,        v. Sheppard, Comptrol-
ler    (Corn.4pp., Section B) 59 S.W.(2d) 112. .Referring to Article
1006, the court there held that this statute has reference to the
entire services of the agent in performing the delegated task,
consequently denied a sheriff       compensation for mileage under
Hon. George H. Sheppard, page 2        (O-4088)


Article 1030, Code of Criminal Procedure, for his services   in
going to the State line and returning therefrom with a fugitive
from justice.   The Brightman case is fully discussed in our
Opinion No. 0-1016, addressed to you and approved July 6, 1939,
it being pointed out therein that although Article 1006 has been
amended since the case was decided the rule.announced  by the
court was not affected   by the amendment.
            It appears that the Legislature   for the biennium end-
 ing August 31, 1943, made an appropriation    to the Executive De-
 partment for “payment of rewards and other expenses necessary
 for law enforcement” and “expenses for returning fugitives    from
 justice;”  and it is this appropriation   to which you refer in
-your request as the Wovernor’s    Law Enforcement Fund.”
          House Bill No. 411, h7th Legislature,   does not seek to
amend the foregoing  statutes.  By Section 7 thereof,  the Legis-
lature has expressed its intention   that this law Is cumulative
of all other statutes on the subject,
            It will   be noted that the title     to House Bill.No.   411,
in part,   recites:
            “4n Act providing that any sheriff   or deputy
     sheriff rho in the fulfillment    of th duti s of u
     gffice   leaves the counfg in which heeholdseoffice    to
     secure and return a prisoner indicted for a criminal
     offe,nse of the grade of a felony shall be entitled
     to receive five cents (595) per mile for transporta-
     tion, and that the distance traveled shall be the
     shortese practicable    route between points;  provided
     further that such sheriff    or deputy sheriff   shall
     receive a per diem sum not. to exceed Five Dollars
     ($5) per day for meals and lodging;    . . .I(
            Section   1 of theBill   reads:
            “&very sheriff,   or deputy sheriff,     in any county
     of this State, who shall hereafter       arrest,   or cause
     to be arrested,     any person, or persons ‘indict ad for a
     criminal offense of the grade of a felony,         in the
     county where such officer      is the duly acting sheriff,
     or deputy sheriff,     shall be paid the sum of five cents
     (se) per mile from the state line and return thereto,
     gl one. the nearest cracticable    r ute. to the ooint
      *
     3b        C    ers                              r wil
     plaied under arrest,     and in addition thereto,     suei of-
     ficer,   or officers,   shall be paid, not to exceed Five
     Dollars ($5) per day, per person, for hotel bills,
Hon. George A. Sheppard,       page 3    (O-4088)


       meals and other expenses necessarily          contracted
       in the performance of such official          duty.”
       (Underscoring ours)
           ‘Section 2 of the Act directs    the Comptroller of Public
Accounts to pay out ~of any fund or funds provided for such pur-
pose, such expense upon approval of the account by the District
Judge, etc..    Section 3 authorizes   the commissioners1 court to
pay the account ins the event there are ,no funds available      belong-
ing: to the State.     Section 4. appears to cover substantially   the
same matter as Section 3 except applicable      to fee counties.
There are additional     sections  to the Act not necessary to mention.
             As we construe House Bill No. 411, particularly           SPctinn
1. ,it provides solely for the payment of the five cents (5Q) per
mi le traveling     and other expeases necessarily       contracted and in-
 curred outside the boundaries of the State of Texas.             While the
 Act‘.characterizes     this expense to be’ paid as contracted       in the
perf brmanc      f uch official     duty~, the %ot does not ‘expressly or
by implica~i&       iuthorize  the sheriff   or deputy sheriff      to go out-
 side the boundary of the State in the performance of his official
,duty normake it his, duty to do so.         It plainly    attempts to
recognize his going without reference         to Articles     1005 and 1006
of the Code of Criminal Procedure,         as an official     dutv.
             We’are not here’concerned       with the question of whether
or not~.the Legislature     may authorize such traveling      outside the
State ~as.a part of,;the sheriff’s      off’icial  duties.   The fact re-
mains that; the. law, presently written,, does not do so.        This de-
partment held in our Opinion No,. o-1590, rendered to Honorable Tom
iovE;;;h3     County, ‘%dit or., McLennan County, Texas, and approved
             , 1939,. that a sheriff   would not have authority to go
beyond the border of. this State and return a prisoner without
first   obtaining requisition     as provided in kticles      1005 and
1006, Vernon’s Annotated Code of Criminal Procedure.
              ‘The fact that kicles       ,1005,‘and i006 of the Code pro-
  vides~ the, method and compensation for such services in going af-
  ter and ,returning. a ,fugitive, from justice,       such constitutes     a
  legislative    ,recognition    of long standing against such authority,
  as attempted ‘to be recagnized inHouse Bill No. 411, of t,he sher-
  iff acting in his official        cap~acity or performing official       du-
  ties outside the ~boundaries of the State.           It. has been stated
  that when the law confers upon a person powers; that .he, as a na-
  tural person, does not posse~ss, that power cannot accompany his
  person b~eyond the boundaries of the sovereignty which has confer-
  red the power’ and’although ‘the’ Legislature        may require or author-
  ize.certain     official   acts to be ~done~beyon~d the State’s limits,
: such acts’are      done~by express authority     or permission,      and the
  power to perform them outside the territorial            jurisdiction    of the
Hon. George H. Sheppard, page 4              (O-4088)



State    is not to be implied.       Meohem, Public      Officers,   p. 332;
46 C.J. p. 1032.
          The title  of the Act in questioa gives no notice
whatever of any service or traveling   expense payable for service
rendered outside the State’s boundaries to which the provisions
in the body of the Act relate.    On the contrary, it gives ‘notice
that such expense is allowed and shall be paid to one, who at
the time, is engaged “in the fulfillment   of the duties of his
office.”
             Section   35, Article    III,     Constitution   of Texas, reads:
               “No bill, . . . shall contain more than one sub-
         ject, which shall be expressed in its title.    But if
         any subject shall be embraced in an act, which shall
        not be expressed in the title,    such act shall be void
        .only as to so much thereof,   as shall not be so ex-
        pressed.”
             We quote from 39 Texas Jurisprudence,            page 100, as fol-
lows:
              w&ether a title     is comprehensive or restrictive,
        expressed in general terms or particularity,       it must
        be in agreement and, conformity,     and not at variance
        with the subject of the legislation.      . . A title    is
        deceptive,  false or misleading if it disguises the
        true purpose of the act end imports a subject differ-
        ent from that to which the act relates.       And whether
        or not a title   states,the   general purpose of the act,
        it is misleading if it states specifia      purposes in
        such manner as to conceal other purposes not stated,”
            The subject of House Bill No. 411 is plainly at vari-
ance with and conflicts    with its title.    Not only that, but ‘we
think it plainly disguises      and conceals the true purpose of the
Act, is deceptive and misleading and in plain violation      of the
above constitutional    provision.    Bitter v. Bexas County, 11
S.W.(2d) 163 (Com.App.) reversing 266 S.W. 224; Sutherland v.
Board of Trustees, 261 S.W. 489, error refused;      Ward Cattle &
k&r;      Co.8v. Carpenter, 109 Tex. 103, 200 S.W. 521, affirming
      . .      .
          In view of the foregoing,  it is the opinion of this
Department that House Bill No. 411, Acts of the 47th Legislature,
Regular Session, is unconstitutional   and void, in violation   of
Section 35 of Article III of theConstitution    of Texas, hence,
Hon. George H. Sheppard,   page 5     (O-4088)


the fees and charges   mentioned therein    are not payable from
any fund.
                                    Yours very truly
                                    ATTORNEY
                                           GENERAL.
                                                 OF TEXAS
                                 By /s/ Wm. J. R. King
                                 Wm. J. R. King, Assistant
APPROVED NOV 15, 1941
/s/ Grover Sellers
FIRST ASSISTANTATTORNEY
                      GENERAL
APPROVED:
        W&NIO~NCO~!TTEE
BY:.      *
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