                        f-Q 25, 1948

HOD. Perry L. Jones          opinion No. V-587
County Attorney :
Travis County                Re: Question relati’hgto
Austin, Texas                    the travel expense of
                                 a sheriff commisslon-
                                 ed to return a fugi-
                                 tive from justice to
                                 this State.
Dear Mr. Jones:
        . .
          Your request for an opinion of this depart-
ment relating to the tr.avelexpenses of a sheriff com-
miasloned to return.a fugitive from justice contains
several question which, for the sake of clarity, will
be stated and answered separately.
         Question No. 1 la as follows:
          “Will you please advise me vhetlier
    it is lawful for me to approve and the
    Commissioners1 Court to pay the sheriff
    and hi’sdeputies under the provisions of
    Article 6877-l,,Vernon’s.Annotated Texas
    Statutes, for any mileage incurred &-
     side of the State of Texas?l”
          Articles 1005 ind 1006,;Vernon’s Code of Crl!n-
lnal Prqcedure, respectively read:
          “Art. 1005:
          ‘When the Governor deems it proper
     to demand a person who has committed an
     offense in this State and has fled~to
     another State or territory, he may com-
     mission any suitable person to take such
     requisition. The accused, If brought back
     to the State, shall be delivered up to the
     sheriff of the county In which it I.1al-
     Zeged he has committed the offense.
          “Art. 1006:
Hon. Perry L.,Jones, page 2   (V-587)


          "Section 1. The officer or person so
     coknlggloned shall receive as compensation
     the actual and necessary traveling expenses
     upon requisition of the Governor to.be al-
     lowed by such Governor.and to .be~
                                      paid out
     of the State Treasury upona certificate of
     the Governor.reciting the se~rvlcesrendered
     and the allowance therefor;
          "Section 2. The Commissioners Court
     of the county where an offense is commit-
     ted may in Its discretlon,,on the request
     of the Sheriff and the recommendation of
     the District Attorney, pay the actual and
     necessary traveling expenses of the offi-
     cer or person so commissioned out of,,any
     fund or funds not otherwise pledged.
          A sheriff, deputy sheriff, or other peace of-
ficer who goes to'another state after a fugitive from
justice may not be legally paid his actual and,neces-
sary~.travellngexpenses by either,the State or county
under.the provisions of Article 1006, unless he was
commissioned an agent of the State by the Governor in
accordance with the provisions of Article 1005.
          You have advised us that the Commissioners'
Courtsof Travis County has allowed the sheriff~and his
deputies ~s&x centa,.permile for the use and operationsof
their personally owned automobiles as authorized by aec-
tion (c) of Article 6877-1, Vernon's Civil Statutes.
This Article refftrlctathe payment for such mileage to
miles traveled to and from points within this State",by
ouch officers in the performance of their official duties
as sheriff or deputy sheriff.
          This department stated in Opinion No. V-525,
dated March 23, 1948, that if a sheriff or other peace
officer of this State should execute In ano,therState a
warrant of arrest or capias.lssued in this State, such
an arrest would be without authority of law, and such
officer's position would be no better or different from
that of a private citizen,,and<that a sheriff or other
peace officer of this State has ,no jurisdiction beyond
the boundaries of his State.
          Ithas been for many years'the opinion of this
office that when a sheriff, his deputy, or other peace
officer has been commissioned by the,Governor as an
Hon. Perry L. Jones, page 3   (V-587)


agent of the State, under Article 1005, such person in
performing his duties as such agent does not act in the
dual capacity of both agent and officer, but at all times
acts only as such agent until he has completed the pur-
pose.for which he was appointed, and travels both with-
in and without the State in that capacity. Oplnlon No.
286.2,Report,and Opinions of the Attorney General, 1930-
1932, p. 291; Opinions Nos. O-1016 and~O-4444..
          The',formof commission lssued'to an agent of
the.State whether he be a sheriff, other peace officer,
or a private cltizen,.has for several years contained
this significant provision:
                  .~
          "I do hereby 'directthe :said
     to rheive said fugitive; bring. .*.*..
     to this State and deliver . . . to the
     Sheriff of the County of . . . inside
 .. .the jail of.said County."
          when the.agent.haa fully performed the duties
imposed.upon him by the foregoing provision, and not be-
fore, his agency is automatically terminated..
          For the reasons'heretofore stated,lyour first
question is an3wered.i.nthe negative.
          Question..Ro.2 ,is,
                            as follok:
           'Will you please advise me,whether
      it is lawful for me to approve and the
      Cofmnlaaloners'Court to pay an agent of
    : the State of Texas, commissioned by the
      Governor In accordance with the provisions
      of Article'l005, V.C.C.P., any additional
      gum over the actual and necessary travel-    .'
      lng expenses paid to him by the State of
      Texas for receiving a-fugitive from'jus-
     .tlce from the.~authoritiesof another state,
      and returning him to -Travis County, Texas?
      (Rmphaa~s added) :.
         ._ .'
           In answer to your second question, It 1s our
 opinion that neither the State nor the county may legal-
 ly pay an,agent of the State any more than his actual
 and necessary~traveling expenses. Under the law as it
.now,exlsts, the payment of such expenses is an obliga-
 tion of .the Stateanditis presumed the State,will respect
 its obligation. Of course, if the State fully pays such
Hon. Perry L. Jones, page.4   (V-587


expenses, the county cannot supplement what the State
has paid,'.forthe ngent has received a&l the law has al-
lowed him. However, should the State refuse to pa.yhim
any legitimate item or items of expense actually and
necessarily incurred by him as such agent, then the Com-
missioners' Court may in its discretion pay the same in
accordance with Section 2, Article 1006, V. C. C. P.,
but it may not legally pay him any mileage for the use
and operation of his privately owned automobile for
miles' traveled either within or without the State, un-
der the provisions of Artlcle.6877-1. Therefore, gourd
second question should be answered in the negative.
          Our answers to questions Nos. 1 and 2 make it
unnecessary to answer your questions Nos. 3(a),.,3(b),4,
5 and 6.
          Question ko. 7 is as follows:
          "If, in answer to any of the above
     questions, you hold that it is lawful
     for me to 'approveand the Commissioners'
     Court ,topay to an agent of the State of
     Texas, commiasloneh-by the Governor .inaa-
     cordance with Article 1005, V.C.C.P. any
     amounts whatsoever under the provisions
     of Section 2 of Article 1006, V.C.C.P.
     then can the Commissioners' Court require
     that an application be made by the agent
     and an estimate of the mileage, and the
     expenses to be paid an agent of the State
     of Texas, commissioned as above set out,
     before he proceeds to some point outside
     theate    of Texas to receive from the     :
     authorities thereof a fugitive from jus-
     tice?" (Emphasis added)
          Section 2 of Article 1006 does not lmpose'up-
on a county, as it does upon the State of Texas, the
mandatory duty of paying the actual and necessary tra-
veling expenses incurred by an agent of the State in the
performance of his duty. The Commissloneral Court may.
or may not in Its dlscretlon ~pay'suchexpe~naesin ac-
cordance with Section2 above. This belngtrue, we know
of no legal reason why the Commisslonersl,.Courtmay not
require an agent of the State, before he leaves to ful-
fill his mission, to file with It an estimate of the ac-
tual and necessary expenses, including actual coat of ,
transportation, he will~incur in making the trip.
 -.   .
                                                          609
      Hon. Perry L. Jones, page 5   (V-587)



                              3urmARY
                   :
                 1. A Commissioners' Court under
           Article 6877-1, V. C. S., has no auth-
           ority to pay a~gheriff or his deputies
           any mileage for the use and operation
           of their personally owned automobile
           for miles traveled outside of this State.
;....!
   ;.      Authority for payment of actual expenses
           .is set out in Article 1006:
                 2. A prerequisite for compensation
            for traveling expenses beyond the State
            line la that the officer be commissioned
            by the Governor to return a fugitive from
            justice. If so commissioned, he shall be
            paid his actual and necessary traveling
            expenses either by the State or the Commie-
            sloners' Court in its discretion, but not
            by both. Article 1006, V.C.C.P.
                 3.'~A sheriff commissioned by the
            Governorto return a fugitive from another
            State travels as an agent of the State and
            not as a sheriff, and would not be entitled
            to compensation in'excess of his actual and                .
            necessary 'travelingexpenses.. Attorney
            General's Opinions Nos. 2682, O-1016 .
                                                 and
                                                 .              -,        ,
                                                                       !. ;
            o-4444.                                              ‘.!


                  4. It la'. the duty of the State to
            pay the actuaLand necessary traveling
           -expenses of an agentsof the State. How-
            ever, should it refuse to pay him any
            legitimate item or items of such expense,
            the Commissioners1 Court may In its dis-
            cretion pay the same in accordance with
            Section 2,'Article 1006, 'V.C.C.P.,but
            'may not pay him any mileage for the use
            and operation of his privately owned
            automobile -for miles traveled either with&
            'in or without the State under the provi-
          ; along of Article 6877-1, V. C..3:
                 5."If a Commis3ioners~ Court agrees
            to pay the actual and necessary traveling
            expenses of an agent.of the State in re-
            turning a fugitive from justice, said
                                                       .      -
. ClIFU                                                               . ,,_ 8:
          Hon. Perry L. Jones, page 6     IV-587)                         . .&
                                                                            8:
                                                                            ~<',
                                                                           .:,
                  Commissioners~ Court may require an esti-
                  mate of such expenses before the agent
                  proceeds to a point outside the State.

                                               Yours very truly,
                                          ATTORNEY GENERAL OF TEXAS

                                          By


          BW:mw                                Burnell Waldrep
                                               Assistant -
