             OFFICE OF THE ATTORNEYGENERAL OF TEXAS
                              AUSTIN



                                                          rebruaq    13, 1939
Honorable Qeo.
Cemptrolltr  o?
Awtin,   Texas

Dear sir:                  Opinion 130. O-S!12




            Under   hate    or Janu                    reqie8t tie opinion
or thin Dopartrent a* to whe                          bill or Dre. Wooten
& Qodaara, la the amount                               allration  ana 8eai-
                                                       oner, ir a legal
                                                        Exeoutire   Department

                                                     n a quertlon   0r faot,    we
quote rr0m a letter                                    D~ireotor of the Depart-
ment of Public      Bare



                                             private oitiren
                                         ze a plaee in Havar-

                                nted on habitual orisltial   in-
                                ounty ma had not been in-
                              Oountr when the Texas Highway
                              eb te transport him to Wllu
                              n habitual  orlmlnal lnrlictmentm

     was in good oonaition  ana wa8 able   to be roved.     Be-
     rore ‘reaching Mllam County, Watkinr’   oondltion   be-
     oame orltioal  ana Hflam County luthorltfee     had lo
     place where a prlaoner in auoh a @xxlltlOn oould be
     properly sareguaraea.   80 it beoame neoeaeary ror
     the Patrol to plaoe this man in seton Infirmary,
     Austin, Texa6,  anb to provide a guard for him until
                           _.


     . .




             Honorable @so. H. gheappard,               February 16, 1839, Page 2


                      euoh tine aa his oonaItLon would permit hla to
                      be removed to the texae 3tate Penitentiary Hoe-
                      pita1 at    Eunterille,  Texas. Thie department
                      oould not    let the man die for laok of mealoal
                      attentlon    that the law of humanity aemanae be
                      loooraea    even to notorloue publle enemler.’
                         At the time the locount In queetion wan lnourred ror
             hoepItalIzatIon    and medical Ieee to cave the life of Jack watklne,
             we 6hall aseume, ror the purpoee of thie oplnlon,       that the raid
             Watkins was properly under arreet,     a6 a prleoner,   and war being
             traneportea    from lavarro County to Wllam County by the Texan Hlgh-
             way Patrol,    to be tried on habitual orlmlnal   IndIotmente pending
             In the latter oounty.      Member8 of the Texas Highway Patrol    are
               Iren euoh authorlt     under Article 4413 (1.21, subdivIsion   (41,
             f ernon’e Annotated EIv11 Btatutes,    whioh provides,   In part, ae
             r0n0w6 :
                            ‘In addition they rhall be, and they are
                      hereby clothed with all the powers and authorl-
                      ty whloh Is In this Aot or otherwlee by law given
                      to member6 of the Texan Ranger toroe.’

                            To    etermlne     the extent       of such authority,          we refer     to
             Artiole 4413 ? Xl), 6ubaIrlsIon (41, Vernon’6 Annotated CIrIl Stat-
             utee, whioh aonfere upon Texas Rangers the following   right6 anti
             dutler     In oonneotlon       with the execution           of crlalnal      process:
                           ‘The otfloere #hall be olothea with all
                      the powers of peace orflcers,  and ehall ala In
                      the exeautlon of the lawn.
                             “They rhall have authority to make lrremte,
                      ana to execute process In criminal oaeem; and In
                      clrll    oaeea when epeolally  directed    by the judge
                      of a court of reoorb;     and In all aaaea hall       be
                      governed    by the law6 regulating    and defining the
                      power6 and duties of sheriffs      when In the din-
                      charge of’elmllar    butlea; except that they rhall
                      have the power and shall be authorlzed to make
                      arrests and to execute all       rooeee In orlmlnal
                      Oases In any oounty In the g tats.       All  orrIcer
                      operating by virtue of thlr Act #hall hare the
                      authority to make arrerts,     a6 dIrected by war-
                      rants, an8 without a warrant under the oondl-
                      tlone now authorized by law, ana alro In all
                      oaaea when the alleged offender 18 traveling          on
                      a railroad,    In a motor vehiole,    aeroplane or boat.
                      when any of #ala force shall arrest any person
                      ohargea with a orimlnal offense,       they #hall forth-
                      with convey aala person to the county where he 60

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                     ”.&.&&&q.;~ +&i L,‘+>:;J  +A.;;~‘F.
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                              ?_‘!h,*..#*:,&.itc..
                                              ;r&  h$+  .,.r :?J. p/j ,.c;.~
                                                                         z,+;*+P.3*
                                                                  ‘. S~,?%~X          ?.i’:~.:s*:i:s’
                                                                                                  ir :;~,~r_~,.i~v4~:~~.~~.
                                                                                                     a.e
bnorable      Qeo. H. Sheppard,     February 15, 1939, ?age 3


         stands dhargea, and shall deliver him to the
         proper offloer,   ,taklng hi6 reoelpt thereror,
         All neoeeear    expenses thue Incurred shall be
         paid by the istate.”
           Normover, we point to Artlale 36, 006s or Ctiminal Pro-
oedure, which Inoludee the Texas ganger ioroe within the deflnl-
tlon a nd loope of the term “peaoe offIoereg.
           Coneequeatly,   from the roregolng l   tatutee, It Is eetab-
llehea that the powera and duties or the membera OS the Texas
Highway Patrol,  In oonneotlon with the exeoutlon of orImInal pro-
oeee, ana the Ouetoay and safe-keeping      of prleonere thereunder,
will be the same ae the power6 ma dutleo oonferrea upon l       herIrre,
and otiier peaoi oltloere,    under governing  statute6 and the decIeIone.
        St 16 the well letabliehed         general rule that the duty a
  oherlrf    or other peaoe offioer       owee to the state or to the public
‘to eafe;y keep a prisoner oommltted to him ouetoay and deliver him
  over to the proper authorities          at the proper time, Is no more oom-
 puleory than Ir the duty he owes the prisoner hlm~elf to exerolee
 reasonable and o+Iqary           oare to proteot hle life and health. There
  two dutler     are so-extensive     and arise by virtue of the egeppLor
  euoh prisoner by much offloer          under orlmlnal prooeee.
 ;ir311;; ~~eone        and PrIeonere,     3.0. 10).      Logan vs. U.S., i4i- iris.
                   Qt. 617 36 L. Ed. 429; Ex Parte Jenkins, 68 N.E.360;
  BtaCe vs. 8.obln, 04 b ea. 40.
                                       *
               Under the fact6 outlined In your letter              It Is our opinion
 that   eaoh of there two oo-existing          duties require& that the orfloere
 who had Jaok watklne In ouetody red to It that                neoeesary   ana proper
 ledloal     attention   and hoepltalItatIon       be promptly afroraed much
 prisoner.       *a rrgardn the duty of much offloere           to the state,   or to
  the publlo,     in the safe delivery      of the prisoner over to the authorl-
 ties   of Ullam County ior trial         on penalng IndIotmente, the furnIehIng
  of euoh lealoal oare and hoepItalleatlon            am wae neoeesary to preeerve
 the life of this prisoner was olrarly             In line with much duty.       Raa a
 rescue or delivery       of the prleoner been attempted while he wa8 being
 transported      In the ouetody or there offioerr,           or had a mob attempted
 to take the prisoner*6         life  or do him bodily Injury, It would have
 been the olear duty of euoh offloere            to inour any expense neoeseary
 to retain ouetoay       0r him, and to save pir        lire,   In order that he
 might be delivered       over for trial.       B&the same token, a duty rented
 upon the offloere       ln the Inrtant oaee ..to preserve        the lire   of the
 prisoner rrom the Illness whloh threatened It In order that he might
 be brought to trial In *Ilam county ror an offense agalnet eo(lety.
           But oonrlderlng  this question solely from that other phase                   ‘:
oil a peace orflcer’e  duty to the prisoner   himsell, to exercise rea-                  ,’
eonable and ordinary care to proteot hle ilfe    and health, we are of                    :
                                                                                          r

    1~
                                                                                     -
Ponijrable   aeo.   H: uheppard,   February 16, 1939, Page 4


the opinion that the lotlon of the Patrolmen In thIe oaee wae amp-
ly Justdried by the raote.      The oonaltlon of the prisoner,    whloh
beoame so orltloal    a6 to require medical attention   during hIa
traneportatlon     was not brought about by the negligence     of the
Texae Highway hatrol In taking him rrom, Iavarro County, or by any
lot or ommleelon on the part of raid Patrol whI1e he warn In ouetody.
Hot to hate furnlehetl medical attention under the elroumrtanoes
would have been a wanton and reokleee disregard of the oommon dlo-
tatee of humanity.
              But deeplte the prleoner’e   orItIoal  ,ana Inrolvent oond-
tlon, and this faithful   dlroharge or the duty rertlng upon the
Rate Highway Patrol to the State and to the prl6oner,       the olalm
presented with your letter    oannot be by you allowed ana paid, In
the abeenoe or some ltatute so providing;    beoauee It Is the gener-
al rule that In the lbeenoe of some express provision      of the law,
the public i6 not liable   to a phyelolan or surgeon for ler vIa es
rendered a prisoner at the lnetanoe of a peaoe~orriaer,      even though
Nob prisoner I6 insolvent     and unable to ay for euah attention.     21
R.C.L. 1176; llolan vs. Cobb County, 81 3. E . 124, 50 L.R.A. (g.8.)
lW3, ana notes.
             That the LegIelature  of Texae, in reoognition  or this
duty or a peace errloer to preserve the life of hIr prisoner,   Intend-
ed to provide for the payment of ex eneeB OeotkLrrp:i?.p this end, Is
ovlaenoea by Artlole 1040, 9eo. S, 8 ode of Criminal Prooedure,  provia-
lng a6 rollowe:
               ‘For the safe keeping  support      and malnte-
         manoe of prleonere oonfIne6. In Jail      or umber
         guard, the sheriff  shall be allowed      the follow4ng
         charger :
                ‘3.  Par naoereary ledloal bill     and reaaon-
         ,able extra oompenratlon for att,entIon     to a prle-
          onor during eIckneee    Noh an amount     ae the oom-
          mIeeIonere oourt of Che county where      the prisoner
          Lm oonrlqed may determine to be Just      and proper.*
              The prleoner, Jaok ~atklne, ram olearly under guard, wlth-
In the meaning of the above statute    eo a8 to make neoeseary medloal
bills a proper olalm lgalnet Milan bounty, had the prleoner been In
the ouetody of the rherlff  theMof.
             But under Artialee    4413 (121, and 4413 (11)) Ver no n’ l
Annotated Civil btatutee,   Highway Patrolmen were olothea with all the      ,:
power and authority of such sheriff.     Ii the question be made that
the prisoner  ehould therefore  have been taken to the.JaIl  of nilam
County In order that proper medIaa attention     might have been af-
forAed, and elalm therefor pala under Artiale    1040, Code of Criminal     it
    Honorable   Qeo. H. Bheppard, rebruarx   15, 1939, page 6


    Prooedure, hereinabove quoted, we may that the racte berore u8 re-
    veal that Milan County did not have proper faellItIee    for this pur-
    pose, and the Texar Highway Patrol was Juetlfled,    In thIe extreme
    emergenoy, In taking the prisoner to the nearest   and beet plaoe for
    treatment and rare keeping.
                Am Illuetratlve or this dIeoretlon   to waive N&Wory    ror-
    malItIe    In lmergenolee, we cite the oaee of Lamar vs. Pike County,
    30 8. g. 912, holding that a oountg was liable ror medloal services
    rendered by a phyelolan Nmmoned by the Jailer to attend a prisoner
    in an emergenoy not admitting of the four hours’ delay neoeenary to
    proaure the attendanoe of the learetary of the board of health, who
    rerlded   twelve miles away from the Jail, notwlthrtanalng  the rtat-
    ute  provided that the latter   should render 6uoh medical eervIoee as
    wore required by prisoners.     The ootart raid:
                 #In the oaee before us It was the duty or
         gmlth, the Jailer In aharge of the prisoner and
         acting for the lherlfr,      to summona oompetent
         phyelolan under the exlstlng       emergenoy to treat
    the prisoner,    and thereby save his life,    If eueh
         oould be done.      It would have been Inexcusable
         negleot on the part of the $aIler to have waited
         four hours to summon the eebretary of the board
         of health, twelve miles distant,       when the neaeea-
         lry mealoal ala ooula be obtained Speedily and
         near at hand, and was eeeentlal       to rave the life
         of the prlroner.      . . . Ue oannot believe that the
         law Intended where a man was In Jail, ad In need
          OS medical service     under the emergenoy existing
         in this oaee, where the board of oounty oommle-
        .eIonere    had appointed a eeoretary of the board of
         health, whose duty It war In euoh oases to render
          suoh medical l66letanoe,     but whose rerldrnoe war
          so remote from the oounty Jail that he could not
         be prooured In time to render the aid needed,
         that the prisoner      rhould be left to suffer and
         perhaps ale, and that      the oounty would not be
         liable    ror the rervloee thus rendered by a phy-
          sician under the employment of the Jailer having
          the prisoner In oharge. ’
/              Furthermore, by the lxpre66 teq6, of Artlole   4413 (11)
    Vernon’6 Annotated Civil Btatutee, It Ir oontemplated that the
    state rather than the oounty ah611 pay expeneee neoeeearlly     Incurred   ~
    by Highway Patrolmen In line ,of duty.    Bubdlvlrion (4) or this Artl-    .,
    ole outlines  the powers and dutIe6 of %ngere In the exeoutlon of
    criminal process,  and provIde6:   “All neoeeeary expenses thus lnour-     t:
    red shall be ala by the state.*     A6 this statute applies to members      .:
    of the Texas EIghway Patrol,   and elnoe the medical and ho6pItal ex-
1   ’




    Honorable   Boo. A. gheppard,   hbruarT     16, 1938, Page g


    penner In quertion were rearonably        and aeorrrarlly    oonneoted with
    the lxeoutlon of orimlnal prore88,        it follow8 that    ruoh lx p en8e8
    rhould be pal& by the Etato.
                ihir leo OUnt h&r been apprOTed for payment out Of the ap-
    propriation    for the Ereoutlre Department, under General Laws, Forty-
    fifth  L8 lrlature,   p. 1420, 8pproprlating  #Q,OOO.OOunder kbdlrl-
    8lon $a4 T for ‘payment of r&war&r and other lxpen8e8 aeoeesary for                   ’
    enforcrment of the 1aU”.
                For the realOn hrrelnabove 8et forth,   lt 18 our oplnlon
    that  the Olalm in quertion undoubtedly oonrtltutel   8n expense ‘neoel-
    8ary for the enforormefit of the law* within thlsgproprlatlon,     and
    TOU are. 8ccordfngly  adrired that Iame I8 a proper charge lgaln8t
    ruoh appropriation.

                                                            Your8 very     truly

                                                     ATTORHEY
                                                            GERERALOF TFXAE

                                                      lly (6lgned)     Pat M. Heff, Jr.
                                                                 Pat    M. lieif, Jr.
                                                                           Am818tant

    PHtl:FG

    APPROVED
           :

    ATTORNEY
           GENFiRAL
                  OF' TEXA8
