                      July 30, 1952

Hon. Robert S. Calvert
Comptroller of Public Accounts
Austin, Texas               Opinion No. V-1488
                              Re: Legality of paying mile-
                                  age,fees to a sheriff for
                                  bringing a defendant in a
                                  murder case to Austin
                                  under a bench warrant to
                                  take a lie detector test
                                  at the Department of
Dear Sir:                         Public Safety.
            Your request for an opinion reads in part as
follows:
          "This Department has received a Dls--
   : trict Court Fee Bill from the sheriff of
     Sutton County,:a fee county, for taking a
     defendant on a bench warrant in a murder
     case from Sonora to Austin, and return to
     Sonora.
          "The defendant was indicted on Sep-
    tember 4, 1951, on a murder charge. On
    November 29, 1951, the District Judge of
    the 112th Judicial District Court in and
    for Sutton County issued a bench warrant
    commanding the sheriff of Sutton County
    to take the defendant to Austin.before the
    proper officer of the Department of Public
    Safety, and have him there,on December 7,
    1951, at or before nine A.M. to take what "
    is commonly called a lie detector test;
    and to keep him there for the purpose of
    said examination and to return hlm~safely
    to the county jail of Sutton County, Tex-
    as, when the test was completed.
          "This Department requests your opinion
     as to,whether the sheriff of Sutton County
     is entitled to mileage fees under the provi-
     sions of Article 1030 C.C.P. for conveying
                                                            . .



Hon. Robert S. Calvert, page 2 (v-1488)


        said defendant from Sutton County to Austin
        and return. In the event you hold these
        fees are Dayable, would each mile traveled
        in takingthe defendant to Austin, and re-
        turning him to Sqora, be at the rate of
        15$!per mile for the prisoner, and 15$ per
        mile for the sheriff, at a total rate of 30#
        per mile?"
            Subdivision 4 of Article 1030, V.C.C.P., pro-
vides:
          "For removing a prisoner, for each
     mile going and comlng;includlng guards
     and all other expenses, when traveling by
     railroad, ten cents; when traveling other-
     wise than by railroad, fifteen cents; pro-
     vided, that when more than one prisoner
     is removed at the same time, in addition
     to the foregoing, he shall only b,eallowed
     ten cents a mile for each additional
     prisoner."
          This office has heretofore held that the
Comptroller Is authorized to Issue warrants for the
payment of mileage fees incurred by a sheriff In the
execution of "bench warrants" compelling the appear-
ance of persons in a case pending before the court
which issued the "bench warrant.   Att'y Gen. Ops.
2967 (1935), 3011 (1937), v-1008 (1950), and v-1030
(1950)-
          On the other hand it has been held by this
office that warrants may not be issued to pay mileage
fees for the execution of "bench warrants" not Issued
to compel the attendance of any person in a case or
in any manner necessary to the enforcement of the
court's jurisdiction of any person. Att'y Gen. Op.
O-4087 (1941) and Letter Opinion to Honorable George
H. Sheppard, Comptroller of Public Accounts, dated
August 1, 1935.
            It is stated in the opinion dated August 1,
1935:
          "You are advised that in my opinion
     the sheriff would be entitled to his fee
     as provided for in the statutes by reason
     of serving process of the court for going
    .’   .




             Hon. Robert S. Calvert, page 3 (v-1488)


                 to the penstentiary and returning this
                 prisoner to,his county. ,He would~not be
                 entitled to a fee for returning the prlson-
                 er to the penitentiary as In my opinion the
                 District Judge has no authority to issue
                 a bench warrant or any other process order-
                 ing the sheriff to deliver a prisoner to
                 any other jurisdictlon. Thl~swould be a
                 matter for the penitentiary authorities
                 to handle and It would be their duty to
                 deliver this prisoner back to the peni-
                 tentiary."
                      In Attorney Gi?neral'sOpinion O-4087 It was
             said:
                     ?'Nelther the caplas nor bench warrant
                 is required to be rec.ognlzedby the Federal
                 authorities who ho,ldthe person as a Federal
                 prisoner. Since they turned over to,,the,~
                 sheriff their prisoner, at which tlme~It is
                 presumed the arrest was made, he then be-
P                came the prisoner of the sheriff whose duty
                 extended no further than to convey him back
                 to his own county jail or to bring him before
                 the court issuing the bench warrant. lp~so     ..
                 far as the Federal authorities or the bench.
                 warrant is concerned, requiring him to return ~.
                 the prisoner to the Federal jail after-trial
                 on the felony charge, fees for mileage so
                 ~lnourredare not provided for nor within the
                 purview of the statute.
                      "When we,look to the above subdivision 4
                 of the article and attempt to apply it alone
                 to the facts, the sheriff, though armed with
                 both a caplas and bench warrant in going to
                 the jail In Austin, was not traveling for
                 the purpose of removing a prisoner. We can-
                 not extend the meaning of the word 'prisoner'
                 to include Federal prisoner, One outside the
                 reach of the processes of a State court.
                 Under the foregoing facts, subdivision 1 is
                 to be construed with subdivision 4, and since
                 the sheriff In going to the jail in Austin
                 was traveling 'in going to the place of ar-
                 rest,' he is allowed mileage on return with
                 his prisoner as provided in subsectl6n 4,
                 but not without further limltation~ Such
Hon. Robert S. Calvert, page 4 (v-1488)


    mileage fee a.p@earsby the'proyl,slonsof
    subdivls'ion1, to be retitric'tedby.the lan-
    guage 'for conveying the prisoner'orprison-
    ers to jail.I ' The statute does not allow
    mileage for shy farther point or terminus
    after making an arrest and for removing a
    prisoner, than the jail over which the'
    sheriff is keeper.
         "Statutes prescribing fees for public
    officers'are strictly construed and the
    sheriff is entitled to such fees as stat-
    utes authorize. Blgham v. State, 27'5S.W.
    147, judgment reversed (Corn.of Ape.), 280
    S.W. 1062.
         "It is therefore the opinion of 'this
    department that the sheriff, under the facts
    sentforth, is not entltled to mileage fees
    for returning the prisoner after trial on
    a felony charge to the Federal jail in San
    Antonio."
          The "bench warrant" in question was not Issued
to enforce the court's jurisdiction of the prisoner or
to compel his attendance in a case, but was issued for
the purpose 'of having.whatis commonly called a lie
detector test made upon him, to which the defendant and
his attorney have agreed In writing,"
          We how of no statute authorizing the State
to oas mileage fees incurred in the execution of "bench
warrants" of-this nature. You are therefore advised
that the sheriff In question Is snot entitled to mile-
age fees from the State In the Instant case.


                     SUMMARY
          Under existing State statutes the
     State is not liable for mileage fees incur-
     red by a sheriff in the execution of a
     "bench warrant' commanding the sheriff to
     take a defendant from a county having
Hon. Robert S. Calvert, page 5 (v-1488)


     jurisdiction of the defendant to Austin
     for the purpose of taking a lie detector
     test at the Department of Public Safety.
                           Yours very truly,
APPROVED:                    PRICE DANIEL
                           Attorney General
J. C. Davis, Jr.
County Affairs Division
E. Jacobsop
Reviewing Assistant
Charles D. Mathews
First Assistant
JR:am
