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                                                                            765


             OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                                    AUSTIN


-CS-
 --



    Honorable H. A. Hodges
    County Auditor
    Williamson County
    Georgetown, Texae

    Dear     Sir:




                                                    questing the opinion
                                                    are herein stated has



                                             ocedure here in regard
                                             a in felony 08888 I
                                             on 80 you may fuliy

                                        sted for robbing a store,
                                        ere and the prieonera      oom-
                               heriff  and placed in jail to await
                                                      they were later
                                               'i'he sheriff  allowed
                               o convey them to Granger for an
                                there for robbery, they waived the
                                and were brought back and delivered
             to the aheriii    and placed in jail;     then grand jury
             also  indioted   them on the Grsnger Bases.
                   The offlcere    in thle preoinct   ht!d made the
             first   arreat and filed their olaim for the tees
             and o;lleage allowed In Pelony cases, now the oon-
             stable in the Granger precinot     files  his olaim for
             fees and the mileage    in felony arrest.s, whiah ii
Honorable    H. A. Hodges, Page 2


         allowed is double milea&e for felony arrests.
         The defendants being In charge of the Sheriff
         (Court) I do not think there is any mileage due
         the aonstable,   also that the waiving of the rights
         to an examining trial should have been given to
       ..them while In jail by the justioe    of the peaoe of
         the Grenger   preo inot.
             "Under the above fasts   I submit the following
       questIonS:
              *l. After a felon is plaoed in jail in
       charge of the sheriff      does he, the sheriff', have
       authority     to allow the oonsteble,  or any other
       offiaer,     to have charge of the prisoner before
       he haa been tried on the a.hargea for whioh he was
       first    pleoed in jail?
             "2. If the sheriff is allowed,  under the law,
       to turn the prisoner over to another offioer      for
       examining trials  what mileage,  if any, is the offi-
       cer allowed for conveying the prisoner   (felony)     to
       the court for trial and what mileage for returning
       to jail?
            "I.am of the opinion that all mileage oherges
       cease after a prisoner has been committed to jail
       and an examining trial has been held, a8 I see it
       he is in the custody of the oourt and the officers
       ere not allowed any adUitione1 mileage."
             Artiole   1020, Code of Criminal   Prooedure,   reads in
part   as follows:
             "Sheriffs     and Constables serving prooess and
       attending any examining Oourt in the examination
       0r any felony case, shall be entitled to such fees
       OS are fixed by law for similar services       in mis-
       demeanor case in County Court to be paid by the
       State, not to exoeed Four and No/100 ($4.00) Dol-
       lars in any one case, and mileage aatually and
       necessarily     traveled  in going to the place of ar-
       rest, and for conveying the prisoner       or prisoners
       to jail as provided In Artioles      1029 and 1930, Code
       of Criminal Froaedure, a8 the faots may be, but no
                                                                            767



Honorable   H. A. Hodges,   Page 3


     mileage whatever shall be paid for summoning or
     attaohlng witnesses     in the county where 0888 is
     pending.   Provided    no sheriff  or constable   shell
     reoefve from the State any additional       mileage
     for any subsequent arrest of a defendant in the
     mine cane, or in any other oase in an examining
     court or in any distriot     oourt based. upon the same
     charge or upon the same ariminel aat, or growing
     out of the same oriminal transeotlon,       whether the
     arrest is made with or without a warrant,        or be-
     fore or after lndlotnent,      and In no event shall
     he be allowed to dupafdate his fees for nlleage
     for making arrests,,,,~wlth or without warrant, or
     when two or more warrants of qrrest or oepleses
     are served or oould have been served on the same
     defendant on any one day.”
            The fourth paragraph of said Artiole  1020, supra,
as amended, provides when the fsea~ provided for shell be
beooms due and payable.    Xe quote the pertinent  language
as follows:
           *The fees mentioned in this Artials    shall
     beoome due and payable only after the indictment
     of the defendant for an offense based upon or
     growing out of the charge filed     in the examining
     aoUrt and upon an itemized aocount, sworn to by
     the offioers   olaimlng such fees, approved by the
     judge of the Gistriot   Court,....”
             Artiole   233, Code of Criminal Prooedure, directs       the
officer    exeouting a warrant of arrest to take the person
arrested forthwith       before the magistrate who Issued the war-
rant, or before the uegistrete         named in the warrant.     Chapters
3 and 4, Title 5, Code. of Criminal Prooedure, proviles the
prooedure to be followed,        following   the aotion directed   by
seld Artlole     233.    The ma letrate    shall proceed to hold an
examining trial      (Art. 245 7 or the accused Waive6 same (&%.
299).   If   an examining trial is held after having the evideno6
the magistrate makes the proper order thereon (Art. 261)~
if waived, requires       bell (Art. 299).      He is required to
aertify    the prooeedlngs     to the olerk of the proper court.
            This department has heretofore   ruled that officers
are entitled   to their statutory   fees for SerViOeS aotuelly   per-
formed, even though the defendant waives the examining trial.
(Letter opinion,   Hon. Everett   S. Johnson to Hon. Homer C,
DeWolfe, February 27, 1931, Vol. 319, page 190) Hon. Paul D.
Page, Jr. to Hon. L. Pherr, November 21, 1929, Vol. 308, p. 96;
                                                                        7ti8



Honorable   H. k. Rodges,   Page 4


Hon. Eruce Bryant to Hon. Geo. 11. Shgppard,      September 9, 1932,
Vol. 338, p. 575)
          County officials     of Pillliemson are compensated on
an annual salary basis end the precinat       officers    are oompen-
sated on a fee basis,     Seation 17b, Artiole      3912e, provldes
In part:
            *In oounties wherein the oounty officers    nsmed
     in this Act are compensated on the basis of an annual
     salary,   the State of Texas shall not be charged with
     and shell not pay any fee or commission to any pre-
     olnat officer    for any services by him performed, but
     said offioer    shall be paid by the County out of the
     Offioera'    Salary Fund such fees and oommissions   es
     would otherwise be paid him by the State for ouoh
     servioes.w
           This statute oontrols   over the language "to be paid
by the State" es used in Article    1020, supre.   This has been
decided by several letter   opinions of this department, to which
we adhere.   (Letter opinionMmHon.     Joe J. Alsup to 1's. R, L.
Armstrong, Perch 31, 1937,~ Vol. 376., p. 834; Hon. 11. 1. :^iilliford
to Ron. Cuinoey Hawkins, June 24, 1938, Vol. 382, p, 151, and
Opinions Ros. O-704, and O-1002)
            Under the facts stated in your inquiry,    two s8n were
arrested for robbin- a store in Yllliamson      County end en examin-
ing trial was held end the prisoners     oomszitted to the sheriff
and pleoed In jail end they were afterwards indicted      by the
grand jury.    Khile they were in jail,   after being lndioted by
the grand jury, they were charged with the off8nse of robbery
at &anger,    a town in ~:llliemson County, end the sheriff. per-
mltted the constable to carry the prisoners      to LaGrange for an
examining trial,    which the defendants waived,    As we understand
the feats,   the two men were charged with the offense of robbery
in two separate end dlstlnot     oases end en examining trial was
held in one end the examining trail was waived by the defen-
dents in the other case.
            Ordinarily,  the sheriff&is the custodian of prisoners
confined in the county jail and Is responsible     for their safe
keeping.    It is his duty to hold them until a disohsrge    is
lawfully   ordered unless they have furnished a bell bond es re-
quired by law.     Rowever, there is no legel inhibition   against
the sheriff   allowing the constable or any other offic~who      is
                                                                              769



Honorable   H. A. HoQge*, Page 8


authorized   by law to hare charge 0t a prieoner for        purpose
ot appearing in examining oourts or to ansner              argee
in  criminal ca6es, although the caee for whloh the       aif
originally   held the prieoners  har ,&dt been tried or %N
                                                        :   posed
or.
            In answer to your aeoond questlon,ikou        are rrrpeot-
fully advised that under Artlole        1080, supra, rharifre    and
oonetabler   serving any proaeea and attending any examining
court in the examination of any felony oaee shall be entitled
to suoh fee8 a8 are fixed by law for similar sbrvlors          in mls-
demeanor oae6e In oountp oourts,       not to exoeed .$$.OO in any
one oaae, and ~~lleagoaotually      and nsoeesarlly    traveled In
going to the place of arrert and for conveying the prisoner
or prironers   to jail a8 provided in Artlole       1080 and ~Uole
1030, code of Criminal Pmedure,as          the fact6 niay be.    Under
the partiaular     fact8 iit this spsoiiio   oaam, we are or the
opinion that the oonatable Is not only entitle6         to his fees
but to mileage aotually      and nweasarily    traveled ln oonveying
the prisoners    iron the jail to the examinfn& aourt and frcun
the examining oourt to jail aa provided in Artlols          1029,, Code
or Criminal F$ooedure, aa the opulatlon 0r ~illlamson County
Is over Fort* Thousand (40,000 T Waabitants.
            Trusting   that, the foregoing    f’ully   amwers   your .in-
qulry,   we are

                                       Very   truly    yours
                                  ATTORNEYOEmRAL af lTbxA3



                                                Ardsll    Willlama
                                                         Asalstant




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