    ..




                                   xc ATT~MNEY                GENERAL

                                            OF    TEXAS

         PRICEDANIEL
         ATTORNEY GENERA,.
                                            March 23, 1948

                  Hon. W. 0. Williams,              Opinion No. V-525.
                  County Auditor,
                  Grayson County,                   Re:   Authority to pay the travel-
                  Sherman, Texas                          ing expenses incurred by the
                                                          Sheriff beyond the boundary
                                                          of Texas in going to another
a                                                         state for a fugitive  and re-
                                                          turning him to Texas.
                  Dear Sir I
                                  Your letter    requesting   an opinion     from this   of-
                  fice   reads:
                               “Enclosed herewith is copy of my re-
                         quest to Hon. Wm. Ralph Elliot,  County At-
                         torney, Grayson County Texas, for his op-
                         inion on questions of iaw, and his written
                         opinion in answer thereto.
                               “1 am of the opinion that Attorney
                         General’s Opinion lo. 0-4088 dated Aovem-
                         her 15, 1941, declared Article       1030e, C.C.P.,
                         unconstitutional     and the payment in question
                         cannot be made therounder.        It also appears
                         that if Article     1030a, C.C.P.,   Is unconstl-
                         tutlonal,   there mpy be some question as to
                         the constitutionality     of Section 2, Article
                         1006, C.C.P.)    as  that article   attempts to do
                         practically   the same thing as Article     103Oa.
                                  “Please let    me have your opinion       on
                         these     questions.n
                           The copy of your request             addressed    to Mr. Elliot,
                 County Attorney of Grayson County,             reads:
                         “1.   Under Section 2, Article 1006, Texas
                         Code of Criminal Procedure, can the County
                         Auditor, Grayson County, Texas, legally  ap-
                         prove payment from county funds to reimburse
                         the Sheriff of said county for actual ex-
                         penses incurred in travelling  from the Texas
Hon. W. 0. Wllllams       - Page 2   (V-525)


          State line to Springfield, MO., and return,
          in returning a prisoner to stand trial  in
          Grayson County, Texas, on a misdemeanor
          charge?
          “2.   Under the same arti,cle, can the Audi-
          tor legally  approve payment of such expense
          in returning a prisoner to stand trial   on a
          felony charge?

      “3.   Before such payment could be made,
      would such officer   have to be commissioned
      under Article   1005, Texas ,Code of Criminal
      Procedure?”
          That request was answered by Hon. Hal Rawlins,
Assistant County Attorney of Grayson County, from which
we quote with approval as follows8
            “All extradition  proceedings are had by
      virtue of the authority given by the United
      States Constitution.    Title 18, Section 662,
      U.S.C.A ., provides that whenever the execu-
      tive authority of any State or Territory       de-
      mands any person as a fugitive     from justice,
      of the executive authority of any State or
      Territory  to which such person has fled
      charging the person demanded with having com-
      mitted treason, felony,    or other crime * * l,
      It shall be the duty of the executive author-
      ity of the State or Territory    to which such     .
      person has fled to cause him to b&arrested
      and secured, and a notice of arrest given to
      such executive authority making such demand,
      and all costs or expenses shall be paid by
      such State making such demand.
                 “Under this Article,  It hdS been held
          that extradition.may    be had of any person
          violating   any act known to the laws of the
          demanding State, Including a misdemeanor.”
               Our statutes,  which are pertinent   to your in-
quiry,      are A)ticles  1005 and 1006, V.C.C.P.    They respec-
t lvely     read:
Hon. W. 0. Williams   - Page 3    (v-525)


            Article  1005.   When the Governor deems
     it proper to demand a person who has commlt-
     ted an offense In this State and has fled to
     another State or territory,    he may commls-
     slon any suitable person to take such requl-
     sitlon.     The accused, If brought back to the
     State, shall be delivered    up to the sheriff  I
     of the county In which it is alleged he has
     c:mmltted the offense.”
            Article 1006.  “Sect ion 1, The officer
     or person so commissioned shall receive as
     compensation the actual and necessary travel-
     ing expenses upon requisition     of the Govern-
     or to be allowed by such Governor and to be
     paid out of the State TredSUXy     upon a certl-
     ficate   of the Governor reciting   the services
     rendered and the allowance therefor.”
           “Sect ion 2. The Commissioners’ Court of
     the county where an offense~ls    committed may
     in Its discretion,   on the request of the
     Sheriff and the recommendation of the District
     Attorney,   pay the actual and necessary travel-
     ing expenses of the officer    or person so com-
     missioned out of any fund or funds not other-
     wise pledged.”
            The law is well established     that a warrant of
arrest or caplas issued in one state may not be executed
In another state, since such warrant or capias has no va-
lidity  beyond the boundarles of the state by whose auth-
ority It wasissued,       4 Am. Jur. 14, Sec. 19; 61 A.L.R.
300. Therefore,      If a sheriff   or other peace officer   of
this State should execute In another state a warrant of
arrest or Capias Issued in this State, such an arrest
would be without authority       of law.  Rx parte Sykes, 46
Tex. Crlm. Rep. 51, 79 S. W. 538. A sheriff         or other
peace officer    from one state has no authority to pursue
and recapture In another state a prisoner held under pro-
cess who escaped from custody and fled to such other state.
In short, a sheriff     or other peace officer    has no jurls-
diction  beyond the boundaries of his state, and when he
makes an arrest without his state his position        is no bet-
ter or different     than that of a private citizen.      47 Am.
Jur. 842, Sec. 29,
Hon. W. 0. Williams    - Page 4     (V-525)


            There Is great difference      between the author-
ity of a sheriff    or other peace office       to act beyond
the boundaries of his state and the authority          of such
officer   when duly appointed and commissioned by the Gov-
ernor of his state to act as an agent of the State for
the purpose of returning a fugitive        from justice.     For
the extradition    of fugitivas    from justice    Is governed by
the Constitution    and statutes of the United States. Art.
IV, Sec. 2, Cl, 2; Sess. 662, 663, U.S.C.A. State stat-
utes, such as Articles     I.005 and 1006, If consistent      with
the constitutional     and statutory    provisions   of the United
States, are enacted merely in aid of interstate          rendl-
tion of fugitives    from justice.      An agent of the state,
when duly appointed and commissioned by the Governor             is
protected   in the performance of his duty by the prov 1s-
ions of Section 663, U.S.C.A.,        which reads1
           “Any agent so appointed as provided in
     Section 662 who receives the fugitive    into
     his custody shall be empowered to transport
     him to the State or Territory    from which he
     has fled.   And every person who, by force,
     sets at liberty  or rescues the fugitive   from
     such agent while so transporting    him, shall
     be fined not more than $500 or Imprisoned
     not more than one year.”
            Section 1, Article   1.006, provides for the pay-
ment by the State of Texas of the agent’s       actual and ne-
cessary traveling    expenses Incurred in the performance of
his duties.     Such expenses Include those expenses incur-
red both within and without this State,        The Legislature
has made an appropriation     of $25,000 for each year of the
current biennium for that specific      purpose - “Returning
Fugitives   from Justice.11
           Section 2, Article   1006, authorizes  a Commls-
sioners’ Court of the county where an offense is commit-
ted, in its discretion,    upon the recommendation of the
District  Attorney, to pay the actual and necessary trav-
eling expenses of the sheriff    incurred within and without
the State, but only when he has been commissioned by the
Governor an agent of the State in accordance with the pro-
visions of Article   1005.
           YOU have su ested that since Attorney Gener-
al’s Oplnlon Nor O&O% held Article    10300 unconstitution-
al there may be some question as to the constitutionality
of Section 2, Article  1006,
Hon. W. 0. Williams   - Page 5    (V-525)


           In the opinion mentioned, a former Attorney
General held that House Bill No. 411, Acts 47th Legisla-
ture, p. 669, subsequently codified    by Vernon as Article
103Oa, was unconstitutional    for the reason it contained
a deceptive and misleading title,    contrary to the pro-
visions  of Section 35, Article   III of the Constitution,
           We hdve carefully examined the original   Act
of 1945 (Acts 49th Leg. p. 451) which added Section 2 to
Article  1006 and have found no constitutional  objections
thereto,  and none has been called to our attention.
           In answer to all of your questions,     you are ad-
vised it is our opinion that neither Section 2, Article
1006, nor any other statute,  authorizes   or permits the
Commissioners’ Court to allow or the County Auditor to
approve for payment any item of expense incunred by a
sheriff beyond the boundaries of this State in going af-
ter and returning a fugitive  from justice   from this State,
unless he was commissioned by the Governor for that pur-
pose in accordance with the provisions    of Article   1005.


            The Commissioners’ Court has no authority
     under Section 2, Article    1006, V.C.C.P.,   or any
     other statute,   to allow, or the County Auditor
     to approve for payment, any traveling      expenses
     whatever incurred by a sheriff    beyond the boun-
     daries of this State in going after and return-
     ing a person charged with the commission of an
     offense,   whether a felony or misdemeanor, in
     this State, unless he was first    duly appointed
     and commissioned by the Governor as an agent of
     the State in accordance with the provisions       of
     Article   1005, V.C.C.P.
                                    Sours very truly,

APPROVED:                        ATTORNEY
                                        GENERAL
                                              OF TEXAS



                                 BytkYzy~4
                                    Assistant
                                             . ’
BWBrwb
