Honorable Gee. ME. Sheppard
Comptioller of Public Accounts
Austin, Texas

Dear Sir:                                  Re:   Opinion No. O-2395
                                                 Whether or not a sheriff
                                                 $8 entitled to any fees
                                                 from the State in attach-
                                                 ing a witness in a for-
                                                 eign county.

          Your letter of riced date requests the opinion of this department
touching two matters which may be briefly stated as follows:

          (1) what fees from the State is the sheriff of a county of
     lees than 20,000 inhabitants entitled to in a felony case, pend-
     ing in'his county, where the diatrlct judge fines a witness'from
     a foreign county, who ie under subpoena end not present, causes
     to be issued an attachment for him directed to the sheriff of the
     county In which the case ie pending, and instructs the sheriff to
     go in% the foreign county, attach t&e witness, and bring him be-
     fore the court; and with which the sheriff complies; and

          (2) Where, under~the same ciraumstances, the district judge
     does not fine the witness, but otherwise adopts the same~~proce-
     dure, with which the sheriff complies.

            Article 481 of the Code of Criminal Procedure reads a8 followsr

          "If a witness summoned from without the county refuse to
     obey a subpoena, he.shall be fined by the court or magistrate
    not eXaeeUng five hua(lreddollara,,whioh fine and jud@ent shall
    be final, unless aet aside after due notice to ehow cause why
    It ehould not be final, which notice may tiediately issue, requiring
    the aefanlting witness to appear et once or at the next term of eaid
    court, In the discretion of~the judge, to anewer for such defblt.
    The court may cause to be iesned at the came time an attachment for
    Ei8idWit1~%38,direotd t0 the~proper county, co-ding        tie officer
    to whom said writ la directed to take said witneee into custody ax@
             before said court at the time named in Bald writ;   fn which
    tzs!t    888 shall receive no fees, unless it appeara to the aourt
    that such disobedience IS eXcuE8ble, when the wltneas m&y recaive the
    same pay as if he had not been attaohea. Said fine when made final
    ana 811 costs thereon shall be collected a8 in other criminal cases.
Honorable Gee. H. Sheppard, page 2 (O-2395)



    Said fine and j&pent   may be aet 8eide in vacation or at the aam
    or any subsequent term of the court for good aau8e ehown,.after~the
    witnees teetiflee or has been dlEoh8rged. The follovlng WOLFEah811
    be written or printed on the faoe of euoh subpoena for out-county
    witnesses: "A dieobedienoe of this subpoena is punishable by fine
    not exceeding five hundrea a0u8r43, to be 00ileOtea 86 fines 8nd
    coata in other crlmln81 casea. I11
         Article 1030 of the Co&e of Criminal m00eaure provides in part,
(LBfollows:

          n+ * + The sheriff or constable shall receive the fo-llowingfees
     when the charge ie 8 felonyr 7. for conveying a witness 8ttkhed
     by him to any court, or grand jury, or in habeas corpus proceeding
     out of hia county, or when directed by the judge fmm ang other county,
     to the court where the case Is pending, * l * said aooount ehallaleo
     'chow,before 88id officer ah811 be entitled to cQnpensstlon for
     expenses of attachea witnesses, that, before EitartingWith 88id Wit-
     ne8eee to the foreign court, * * l."

          Theee statutea provide for, and clearly oomteniplate,that an attech-
ment for a witness in a foreign county eh811 be dIrecta& to the sheriff, or
other officer, of suoh foreign county. Plere ia no etatutory authority for
the sheriff of the county in which the felony 088~ is pending to go outside
the boundaries Whls   county for i&is purpose.

           "At camaon law, a sheriff h8e no jurladiotion beyond the
     borders of his county. The Constitution of this State providee for
     this officer, giving to the Legislature the right to prescribk'hti
     duties.   We have aearohed the statutes carefully, but find no act
     giving jurisdiction to the sheriff to eerve oapias beyond the limits
     of hie county; and hence the attsmpted arrest in *hia case was
     unlawful". JOIW V. STATE, 26 Tax. App. 1, 9 S.U. 53, 8 Am. St. R.
     454.

          In oonat.rulngArticle 223 of the Code of Criminal Procedure, which
authorizes any peace officer to execute 8 warrant of arrest In any county in
this State, the Court of Crlmin8lAppeals of Texas, in the case of BEFGOBIV.
       49 s.w. (28) 463, aeOlared: :
STA'PE',

           ?che opinion is expressed that the statutes quoted ana those to
     which reference has been made evidence the Intention of the Leglsl8ture
     to confine the jurisdiction of the sheriff to his oouuty, exoept insofar
     as the authority to execute warrants of arrest in any aounty of the state
     IS conferred by Article 223, C.C.P. * l * Article 223, C.C.P., authorizing
     the execution of a warrant of arrest by a sheriff under the conditions
     etatea in the 8rti010 in 8ny 00mq in the state, is not ae0ma to have.
     the effect to extend generally the jurisdiction of a sheriff beyond the
     borders of his county. * * *"
Honorable Geo. H. Shepm,     page 3 (O-2395)



          There being no etatute authorizing 8 eheriff to attaoh a witness
out&de the bordere of hie county; abeent whioh he h8e no jurisdiction
to do 80, it necessarily follows that he is entitled to no fees from the
State, uotwithetapdlug he does actually bring a forelg8 wltatas before the
court under an unauthorized attaobment. The matter of whether or not the
district,judge fine6 the wltneee in euch situation would have no significance.

          Aaoordingly, you are reapeotfully 8dvieed that it is the opinion
of this &eparimut that the sheriff would be entitled t0 no fees from the
st8b3 andOr either Of the fad eitu8tiOZm deeoribed in JroUrletter.

            Trusting the above fully 8newere your inquiry, we remin

                                               Very truly you?,



                                               By /e/ Zollie 0. Steakly
                                                      20111~ C. Steakly
                                                               Asslst8nt
ZCSZBS“as

APPRovEDJuN    ll,lg40                   APPROVED
                                        OPIWIOIPCOlMITTEE
Id   Gerald c. uann                     BY /e/!B.W.B.CHAIRUN

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