    OFFICE   OF THE ATTORNEY      GENERAL    OF TEXAS
                         AUSTIN




Honorable ST. M. AlLen
county Auditor
Hunf county
Greenville,  Texas




           Your letter                      aontalns    the follow-
ing paragraphs request


                                       bls    and the



                                   lndloted    the man
                                  the Dlstrlot
                               r arrest,    whloh was
                              delivered    to, the
                             ing issued to and

                      a arrest was made t&e oanetabls
                      d the address of’ the ZL?IIIunder
                      at this time was in Anson, Jones
                      The constable of Hunt County
                    able at Anson in fones oountg and
          him arrest ths aooused man for him. The
     Hunt County oonstable then goes to the sheriff
     and asks for the warrant, seouras ssme and
     drives his personal oar to Anson, brings      the
     man baok to Hunt County and plaoes him in jail,
     and illsa  a olaim against Runt County for 2.03
     per mlls ror 256 m!les,
!?onorable     3. X. Allen,   page 2

               *The sherirr   0r Hunt County is on salary
      basis.
             “The constable 0r mat County is on ree
      basis.    Ia Eunt County liable to the constable
      for t&e amount of fees in this 0888 as outlined
      above?”
               Artiole   441, Vernon’sCode   of Criminal    ?roceCure,
provldea t
            **A o,?las’ is a writ issued by the court
      or olerk, and dlreated  ‘to any sheriff  of the
      State of Tsxae,’ oorrmndln~ him to arrest a
      person aooused of an offense   and brlns hlm
      before that oourt forthwith,   or on e day or at
      a time stated in the writ.”
               Article   443, Vernon’s   Code of Crlmlnal    Procedure,
provides t
            “A caplas shall be immediately fo~?ued by
      The Nstrict    Clerk uon each lnd?otxent    for
      felony ureaented. and shall be. dellvored    b!?
      the oie;k or mea&d to ~the sheriff’   of ~the -
      co*lnty where the sherirr resides or is to be
      found.”
               Artlols   453, Vernon’s   Code of Criminal    ?rooe.lure,
provides:
             *A oapias nay be exeouted by any osnstoble
      or peaoe off leer.   In felony oases, the de-
      rendant .aust be delivered   forthwith to the
      sheriff   of the oounty where the arrest Is
      mode, together %ith the w:lt under which he
      was tnken .*
            Xc note that you state in your request a *war?ant”
was issued,    ‘Under the statutes, after indiotxent is returned
in felony oases, the proper writ to be issued by the clerk
is a *oap:as”.     As suoh writs are commnlg referred to as
warrants, we nust presune under the faots submitted that the
proper prooess was ls^uec?.
          AoaorE1r.g   to the 1930 Federal Census, Hunt County
has a population    of 49,016 lhhabitants  or ln exoess of
40,000, csnsequently    Artlole 1029, Vernon’s Code of Criminal
Honorable      J. X. Allen,         page 3

Frooeduro, is ap.~lloable as to mileage i8ea pyablo   ln such
eases with the rees speolflad  therein oontrolled  by the fol-
lowing seetlonsl
               *l.*   f”~
                    axeouting eaoh warrant or arrest or
     oaplas,        and in all oases five aents per mile
     for eaah mile aotually   and neoessari1y   traveled
     in going to the plaos of arrest;    and tor oon-
     veyfng each ?rlsoner   to jail! he rhall reoelve
     the mileage provided In subdivlsloa     4.
               **t*         .
               r* * * .

            “4. Bar             reaovlng or oonveylng prisoners,
     ror eaoh mile              going and coming, including
     guards and all              other neoeesary expenses, when
     tratelling  by             rellroad,  ten oenta.    ;ihen travsl-
     fnz ~~harwlse              than by rallroad,   rourteen aents)

           Under the oonstruotlon    2lsced upon the foregoing
mileage 9rovisione   of krtlole   1029, supra, and previously
followed by thls deaartaent,    the officer   is allowed five
oents ,er mile -0ing snd a tots1 o.f twenty-eight      dents per
mile returning t fourteen cents for the oonstable and fourteen
oents for the prisoner)    for eaoh mile aotually and neoessarily
traveled.
          :t;e call your attention              to the ~rovlsfone  of Artiole
3912e, Vernon’s Civil .Ttatutes,               which reads, in ?art, es fol-
lows 1
           Yectlon  17.  (a)   * * + . In all oounties
     in this qtata suoh qreolnat orfloers    shall oon-
     tinue to be compensated for their eervloes on a
     fee basis until the Coaalssloners’   Court shall
     have detontlned otherwise in aocordanas with
     the provlsfona  or Teotlon 2 of this liot. * + *.
           “In oountlas wherein the aounty offioers
     naexed in this hot are somaensated    on the basfs
     of an annual   salary, the ?tate of Texas shall
     not be oharged with and shall not pay any fee
     or ooanlsslon   to any preoinot ofrloer   ror any
     services  by bin p&o&d,       but said orflcer
     shell be yaid by the county out of the CSiicere
     .T
     ~:alsry Fund such foes and comxlssions as rould
I?onorable   J. &I. Allen,   page 4




             It is thsrsfore,    thr opinion of this department
that under the facts -resented in your request, Runt County,
with a population      in exoess of 40,000 inhabitants    and its
preoinot offiosra      oom?ensated for their services    on an annual
fee basis,    is liable   to the constable   for the mileage fees
re?resenting    the miles aotually    and neceesarilg  trnrelled  in
going to the plsoe of arrest at the rate of five aants ?or
mile and in returning with his prisoner at the rate of twenty-
eight oents per zile.       3uoh fees are payable iron the Offiosrs
Salary Fund ot the county.

                                            Yours   very   truly
