                          %‘lanE   ATITORNE-V          GENE-
                                       OF TEXAS
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      Hon.   w.   M.   Tucker
     'county Attomsy
      Collingmvorth County
      Wallington, Texas

      Dear Sir:                                Ouinion No. O-1809
                                               f&r Would the sheriff end constable
                                                   be entitled to mileage under the
                                                   following statement of facts?

               Your request for an opinion on the above stated question has been
      received by this department.    We quote fran your statement of facts 8s
      follows:

                                    "BRIEF AND STATEMENT OF FACTS

      "A complaint we.8 filed in my office, as County Attorney of Collingsrrorth
      ODunty, charging a resident citizen of Amarillo in Potter County, Texas,
      with swindling by endorsing and cashing a check in Callingsworth County,
      after he knew that pymsnt on the check had been stopped. The ohatge was
      a misdemeanor charge. A warrant was issued in Hellington, Collingsworth
      County, Texas for defendant's arrest and the sheriff and oonstable of
      this county each made a trip to Amarillo in Potter County, Texas for the
      purpose of making the arrest. But neither of the officers 1~s able to
      affect the arrest, as the defendant was either out of totanor secluding
      himself.

       "The warrant was then left with the Justice of the Peace at Amarillo in
       Potter County, Texas, and the record shows that the defendant was arrested
       by the sheriff of Potter County, Texas,,and taken before a Justice of the
       Peace in Amarillo, Texas, whereupon he gave bond for his appearanoe to
       answer the charge against him in the County Court of Collingsworth County,
       TCUIS.

       "The sheriff and the constable, each filed claims for mileage for each
       said trip, in the total amount of $52.50. Now, the defendant claims that
       the said sheriff and constable of Wellington in Collingsworth County,
       Texas are not entitled to any mileage3 whereas, the CollingsfforthCounty
       officers are naturally claiming that they are each legally entitled to
       this mileage. The defendant makes no objection to the fees of the Potter
       County sheriff.

                                          QUESTION:

       "Please let me have your opinion as to whether this mileage is correct,
Hon. W. M. ticker, page 2 (O-1603)


the nearest practical route from Wellington to Amarillo is approximately
100 miles."

           As we understand your request, it is whether or not a sheriff or
constable is entitled to mileage for unsuccessful trips made In search of a
person charged with a misdemeanor xhen such parson is finally arrested.

           Hon. ?I. Grady Chandler, Assistant Attorney General, answered this
question in the negative in a letter opinion addressed to W. G. Danier, under
date of June 26, 1927. The facts in Mr. Chandler's opinion were very similar
to the facts presented in your inquiry, exoept the person was oharged with a
felony instead of e misdemeanor offense.

             VO~UIN 35, Cyc., page 1592, stetes the general rule es follows:

"The general rule is that e sheriff has no right to mileage in attempting to
8erve prooess or make en arrest which isnot actually or lawfully served or
made, and even though he ultimately serves the process or makes the arrest
he cannot oharge mileage for previous unsuooessful attempts."

             57 C. J. 1112 states the rule as follows:

"The statutes sometimes allow a sheriff ocanpensationfor endeavoring ~to serve
process although he is une le to find end serve the party; but in the absence
of en applicable provision to this effect, the sheriff is entitled to no fees
for unsuooessful attempts to serve process." See Wegenr vs. Ramsey County,
70 NW 166.

           There is no statutory provision in our statutes which authorizes
the sheriff to colleot e mileage fee for an unsuccessful attempt to serve
rpocess or a warrant of arrest, end this department has repeatedly held that
P sheriff or constable is not entitled to mileage fees for suoh unsuccessful
attempts.

           Article 234, Code of Criminal Prooedure, provides that in felony
0888s where the defendant is arrested out of the cwnty vhere the offense was
conrmitted, he shall be taken before e magistrate of the county where the
offense is committed. IVhileArticle 235, Code of Criminal Procedure, pro-
vides that in misdemeanor ceses where the defendant is arrested out of the
oounty where the charge was filed, he shell be taken before a magistrate of
the county where the arrest is made and that this magistrate shell take the
bail end immediatelytransmit the bond to the court having jurisdiction of
the offense.

           If the defendant failstD give bond under the provisions of Arti-
ale 235, Code of Criminal Procedure, then by Article 236, Code of Criminal
Procedure, the defendant is committed to the jail in the county where he is
srrested, and the sheriff of the county in which the charge is pending is
not given the ahthority to transport the defendant back to the county where
the charge is pending until he has received notice fromthe sheriff of the
Hon. W. M. Tucker, pege 3 (0-180s)



county where the arrest is made that the defendant has filed to give bond
and is confined in the jail of ths county where the arrest was made. Arti-
cle 238, Code of Criminel Procedure, provides that if the proper officer of
the county where the offense is alleged to have been committed does not de-
mend end take charge of the prisoner within thirty (30) days frcmthe date
he is committed, such prisoner shall be discharged from custody.

           In the case of Busan vs. State, 128 SW 388, the faots are that a
resident of Bood County, after having committed a misdemeanor in aaid county,
went to Atasoosa County. A warrant was sent to Atasoosa   County where the
defendant was arrested and placed in jail. The defendant asked to be allowed
to give bond but this was refused by the sheriff of Atasoosg  County on the
ground that he had already telegraphed the sheriff of Hood County to oome
after the defendant. The Hood County sheriff went after the defendant end
returned him to Hood County here he was convicted. :$92.50was taxed es the
fees of the Hood County sheriff in going after the defendant end returning
him to Hood County. The Court of Criminal Appals held that the sheriff
was not entitled to his mileage charged. We quote from this case es follows:

"Again, we believe that, under the statutes, the defendant ws tntitled to a
reasonable time in whioh to make bond, end, the proof of this owe showing
that he not only offered to make bond, but was willing to make bond, it
would be en injustioe to charge and tax the defendant up with the expense of
the sheriff in going after him end bringing him to the county of Hood."

           On Ootobsr 7, 1937, in an opinion written by Hon. James B. Eeff,
Adsistant Attorney General, addressed to Ron. C.H. Talbot, bounty Attorney,
Bastrop, Texas, this department held that a sheriff was not entitled to n&l-
cage fees going to another oounty to return   a defendant charged with a mis-
demeanor in his home county, if the defendant was not returned by reason of
giving bail as provided in Article 235,   Code of Criminal Procedure. Under
the statement of facts submitted in your inquiry, the defendant gave bond
for his appesranoe to ensnw the oharge against him in the county    court of
Collingsworth County, Texas.

           Inview of the foregoing authorities, you we respectfully ad-
vised that it is the opinion of this department that neither themsheriff
nor constable is entitled to any mileage fees for their unsuooessful at-
tsmpts to servs prooess or make an arrest which was not actually or lew-
fully served or made.

            Trusting that the foregoing fully enswers your inquiry, we remain

                                             Very truly yours
APPRCX'EDJAN 11, 1940
/*I W.F. Moore                             ATTORNEY    GENERAL   OFlEXAS
FIRST ASSISTANT ATTOBXEY   GENERAL
                                           ay /s/ Ardall Willttams
AWtAWregw
APPIKXED: Opinion Committee                           Ardell Williams
          By BWB Chairmen                                   Assistant
