                                   AUSTIN     ~.TEXAS
GERALD C. MANN




  Honorable   George H. Sheppard
  Comptroller    of Public Accounts
  Austin,   Textis

  Dear Sir:                                 Opinion No. O-4444
                                            Re:   Payment of traveling   expenses
                                                  of agent of Governor appointed
                                                  to return  fugitives from jus-
                                                  tice  to Texas.

                    Your    letter   of February 18, 1942,         states    that you de-
   sire     the   opinion     of this departmerit upon the         following     question.

                   May the expense3 of an employee of the De-
           partment of Public Safety   traveling      as the agent
           of'the  Governor of Texas to the State of Callfor-
           nia to return, to Texas fugitives     from the justice
           of this State be paid from the appropriation         made
           to the Department of Public Safety       for traveling
           expenses?

                    Our Code of Criminal  Procedure,    Article  1005, pro-
   vides     with   respect to the raeturn of fugitives     from justice:

                   "When the Governor deems it proper to ae-
           mand a person who has committed sn offense      in
           this State and has fled to another    state -or ter-
           Pitory,  he may commission any suitable    person
           to tak.e such requisition. Q D 0 D

                    Code of    Criminal     Procedure,   Apticle     1006,   provides:

                      "The officer     or person 30 commissioned     shall
           receive     as compansatfon      the actual and necessary
           ,traveling    expenses upon requisition      of the Gover-
           nap to be alloyed        by such Governor and to be paid
           out of t,he 'Sts?,e TreasuPg upon a certificate         of
           the Gover-nor recitfng        the services  rendered  and
           the allowahce      therefor."

              The ap ropkiation     bill for the current      biennium pro-
   vides the sum of P5,OOO.OO~ per fiscal      year for the Governtr    to
   defray the "expense3    bf returnfrrg fugitive3     from "ustice.
   (Acts 47th Legislature;    Regular Session,     page 115 !I .)
Honorable   George   H. Sheppati,     page 2              0 -4444



              In the case of Brightman v. Sheppard,        122 Tex. 318,
59 S .W. (2d) 112, the Supr”eme Cou& of Texas held that under. the
provisions    of Article   1006, above quoted,    an officer     or private
person commissioned      by the Governor  to return a fugitive        from
justice    to Texas is for the purposes     of the services      rendered   in
that connection     the agent of the Governor,     and must look to the
Governor for his compensation,       to be determined     by’the   Governor
under the pPovfsions      of Code of Criminal Procedure,       Aptlcle    1006.

              We, therefore,    hold thatthe   actual  and necessary
traveling    expenses   of the employee of the Department of Public
Safety,   if he traveled     to California   under the commission    of the
Governor as the Governor’s       agent to return to this State~‘such
tigltives    from justice,    ape to be paid from the appropriation
provided    the Governor for r>eturning fugitives      from justice,   upon
the certificate     of the Governor reciting      the services  rendered
and the allowance     therefor.

              Our4 Opinton No. O-3470 Is        not applicable    tothe in-
stant  situation.     Ir! that case,    the    traveling   expenses   of the
employee of the Department        of Public     Safety wepe not incurred
as the agent of the Governor,        since     extradition   proceedings   wer?e
not insitituted,     the fugitive    having     waived extradition.

                 In respect   totie    traveling    expense account under con-
sideration,       we think it advisable        to observe    that consulta,tion.
with members of you,r department             and an examination     of the ex-
pense accuunts       submitted     for payment reveals       that it is not clear
that the trip was made by the employee of the Department of Public
Safety as the agent of the Governor.               Though the employee ap-
pears to have assisted          o%her officers      in returning    the fugitives
involved     to Texas, the expense account           reveals    that he conducted
an investigation        in California     0 Since it is competent         for the
Department of Public        Safety     ,to send their    agents out of the
State for the purpose of conducting              investigations      of crimes
alleged     to have been, ,commltted in this State,            the traveling     ex-
penses of the employee,          if he did not travel        as the agent of
the Governor;,      may be paid from the appropriation            made to the De-
partment of Public Safety,            and the fact that he may have assist-
ed the agent of the Governor in rJeturning the figitives                    from
justice     will   not defeat    that    pa:yment.
Honorable    George   H. Sheppard,     page    3              o-4444


                                       Yours   very   truly

                                  ATTORNEYGEXERAL OF TEXAS


                                       By s/ROW. Fairchild
                                             R.W. Fdrchlld
                                             Assistant

RWF:LM:wc

APPROVEDMAR 5, 1942
s/Grover Sellers
FIRST ASSISTANT
ATTORNEYGENERAL

Approved    Opinion   Committee   By   s/BWB   Chairman
