        OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                             AUSTIN




Konorable Gsorgs H. Sheppard
Comptroller of Pub110 Aoaounte
Austin, Texas

Dear Sir;
                                                                   ould
                                                                    and
                                                                   eriif
                                                                   re-
                                                                   010



           Your letter                        requesting     an opln-
ion OS this depart3


                                              .   His 0888
                                              released     :tram
                                              e -date        was


                                aorumotion with the re-
                         and his habeas oorpua prooead-
                          in a letter   addressed to thin
                         6 by San Uleveland,     Distrlot
                         AVilb,   Tsxacas, rhioh letter   Is

                   ohn Ednaadson, Sheriff  of Palo Pinto
     Oounty, presented hle olaim ror mileage in retnm-
           Rayburn from Harris County to Palo Pinto County
     th
     ‘Y a department refused payaent of aafao on the
     ground that ths bondsmen wers liable     for thst fss.
     Hr. Cleveland alaim     that thla department is In
     error in that partioular    and alaim   that the bondd-
     men were dlsoharged when R@NWA was arreeted       in
     fiarri 8 County,
Honorable   George R. Sheppard,     Page 2


            “I will thank you to advise whether or not
     the Stat. should pay the mileage and sxponae ao-
     oouut OS the Sherifr or Palo Pinto County ror re-
     turning faok Rayburn to Palo Pinto County under
     the faota stated in this letter     and ths attached
     letter   from the Distriot Attorney   at Stephenvillo,
     Texan.”
           The letter of the Distrfot  Attorney    of 3tephentillo,
addreesbd to your department and referred    to in your request,
after omitting the argumentative portion,    reada   as followe!
           7011 have reoeatly  had for oontdderation the
     aooount of the sheriff   of Palo Pinto County in
     whioh a afd aooount them war an itea relative    to
     wnreylng Jaok Rayburn from Harris County to Palo
     Pint.0 county.
            &burn    was indioted in 1932, oonvioted     ln
     1937, his ease was appealed   and thereafter   af-
     flrmedl and upon the mandate being r&mmed       by
     the Court. of Criminal Appeals he waia subjeot     to
     arrest  and delivery  ta the penitentiary   author-
     ities.   l . .



           “Rayburn uas resently looated    in Earrlr  County,
     end was arrested upon the not ioe whloh had been
     plaoed in the hands of all ofiioers      early in 1938
     after his ease was afftirmed,    After his reoent ar-
     rest he waa oonflned in jail in Harris County, the
     prison authorities  were notified,    and they were
     ready and willlng  to piok him up iA Harris County
     and oonvep him to the prleon at Riuntsville.       . . 4


           ‘0~ the other hand Rayburn at this stage, had
     the right to have his 088% reviewed oa his appli-
     oation for a writ of habeas oorpue, whioh he filed
     in Efarrin COMty.   l . l
            -Upon the ifling  of his #        cation   in Barris
     County   the WUWJ wae heard by t         8w:t  who deter-
     Pined that Surisdiotlon    was la        0 Pinto count
     itf$$#g&th”        oasg transferred     there. for fi Aai
                     . . .
                                                                                  359


Honorable     George R. Sheppard,      m*    3


            The sort ulain((  oat of t&e retural~      of Jaok Ray-
burn to Palo PiAt0   Ooplrty imr Harris CountJ was due to the
faot that the eaid Raybura had filed     his applloation    for a             s
writ of habeas oorpue in Earrle Uouat;l led t& OIPSS was
transferred   to Palo Pinto Oouaty.   El8 ruaoval w&e IndopeAd-
Mt and had AO oonneotion whatsoever with the main oaee uAdar
whioh he was eonrioted    or with the mAdate   of the Court of
Criminal Appeals,   but his treaefer arose eolely      out of t&e
habeas oorpw proceeding.
             Artlole 1W Oode of OrImiAal           Proooduro,    Ohapber 7,
Title    3, reads as f&u81
               9lha     the return of the uril, hne boa mde
        and the     applioaat   brought before the oourt,        he 1s
        no longer dotaflwd        oa the original    rimrant    or pro-
        8888, bat under the rtlthorlty         o? the ktabew 6orpw.
        The lafekeep          of the prisoner,    pendl~     the emsi-
        Antion or hea2 ne is entirely           tmder the direotioa
        and authority       of the judge or oourt leanly         the
        writ,   or to whloh thr return is mado. Ho nay be
        bailed    from dey to day, or bo nntandod Co t&o same
        jail whence he oam, or to Amy other plae8 of lafe
        keeping under the oontrol of the JW4ge or eorut,
        till   the eaee is fixmlly      determined.”

            A habeas oorpue prooeeding    Is a prooeedlAg   tbt   18
IndepertdeAt o? the originll   oauee and the ooete a?181
lnourring   out or euoh a preoeedlag   ehould not be oonri “g ered
                                                                Or
as oorte of the rain oarsa     Thi8   olnt is browht     out in the
oa6e of YoCoraiok t. Sheppard, 1 28 Tex. 29, b6 S. I. (24) Uj,
in whioh   t&o oerrt stated as follower
                       A writ   or habeas oorpw lies when a
        pereo~~i~ ~etralaed      ef his liberty       reg6rdleer     of
        the offense oharged. A Jmbeae oorpue proeeadiag
        I8 Independent    or thr offsA       oharged,      . . , we
        think that prooeediaga      for write of habeae oorpw
        are to be regarded a8 IA a epeoial          0111811, and the
        ooete lnoldent thereto      ale not to be rogarded as
        ooate in the maln ease.        mo date      r0r various rea-
        eons 18 peouliarlr    1ntereated     in proteotfag       the
        liberty  of the individual.       In muq inetanoee          the
        leeuanoe  of the writ 18 oaloulated         to lvllen       the
        6tate or ooonty fro8 large rxpmm*.             There ir theta-
        fore ample ooaslderatlon       to authorlse      the payment
        or the fee by the state, . . .”
             Slaae the offiooro        of Pale PInto Uouatr aro 00~
Pellootod on R fee baolo,       otld tho eount~ havlly     o popalatloa
of 18 458 aooording      to the    lad    0OnOUO, Arti      low, Cod0
or  Or Linti    Proo8dar0,  Chaptor 2, Title 15, 10 the proper
artfolo    to aonoldorin dotormin.lkq tha roei 0r its ohorirf
and aonotable.      This artiole,       in part, protldoo:
              ”. . . .

             %     ?or attod      a prleoaer    on habeas eorpuo,
       for eaoh day four               together with mIloa&o
       as provided    in oubdl+loloa3, uWm ram7           ouah
       plooner out or tho oorutty    OBdor   an ord*r 7 osued
       by a dlotrlat    or rppellatr judge.*

              8Pbdltiolon      5     roforrad   Co ln Seatioa 8 oi MI-
ale   1030,   oapra,   roads       in part   am tollowor
              .        protldod,     that La oountiro that km            a
       pOpUlOk~O'Oi 1000 thu             forty thOUOalid inhobitanto,
       as ahowa by the preobdiryl Podaral oanouo, the rol-
       lowing roe0 shall apply8             For raoh Irile thm 0rri0er
       may be oompellod to travel            in lr eeuting   arlainal
       pmoeoo,     owaonlq       or attaahlng     wltaeeoeso, ton
       aento~ provided,that ia no aaoe oh0l1 h0 be al-
       lowed to doplloatr        his raileage whan.two or mom
       witn00000    ar0 named in the oa58 or dirrermi               writs
       in any 0880 emd ho oh0l1 lorvo proaoso 08 thOm in
       the same tlolnltg       or neighborhood,       duriql6 %a ~saao
       trip,    ho shall not ohargo a&lea60 for soning                oaoh
       witness    to ad tror th0 oouaty          Oeat, but shall
       oalr ohargs one aileago,           and ror suah additioml
       miles oalr as aro aotuallJ            and noa~osarll~     tra+c4ad
       In ounaanlng or attaching           eaoh additional     wltneeo.
       Whan prooeos lo sent by mall to any offloor                 away
       tror the oountr seat or returned br mail br suoh
       orricer,    he ohall only bo allmod          to ohargolairoa6.
       ror the miloo aatually          traveled   by hti In rxaoutlng
       0~0h pr0000o, atid th0 roturn 0r th0 0rri00r ohall
       show the ohamotor         of the oaniee      and the tiles
       aotuo.llT tnralbd ln laoordaaao with this oubdiri-
       olon; and his looeunto shall show the iaato.’
          When th0 oOU?t Oi &rriO  OOUfbtJtrUOfOrd                     the
oaoe to Palo Pinto County, it bweur the Oourt’o duty                   to
                                                                         363.

Honorable     George H. Sheppard,   Paso 5


deliver     thadoreadeat  to the sheriff or that oogitl,   The
lhmrifi     of Palo Pinto Oountr nent to Harris Count7   took Jaok
Rayburn     into auotody and transported him to Polo P&o    County.
              It is thorstore   the opinion  or this department   that
thn lherlfi     or Pclo Pinto County, tier     the raoto stated,   lo
mtitled     to ree0 rmm     the state ror his aeniooo    in rrtwning
Jaok Rarbburn from Rarrio County to Palo Pinto County as pro-
vlded IE Artiale     1030, oupr8,
                                              Yours   tery   truly
