April 4,   1950

Eon. Robert S. Oalvert Opinion Ho. V-1030.
Camptrollerof Public
Accounts               Re: The arrest and’mileagefees
Austin, Texas              of a sheriff under the vari-
                           ous circumstancessubmitted.
Dear Sir%
            Your request for an opinion is a8 follows:
          “This Department has received fee ac-
     comts from sheriffs, In counties where the
     other county officers In said county are
     paid on a fee basis, as follows:
          ‘1. A defendant was convicted in M&al-
     loch County of felony theft and sentenced to
     five years suspended sentence. The Sheriff
     made claim for $3.00 arrest fee and was paid
     that amount, no mileage fees were earned or
     clalmed. The court subsequentlyrevoked the
     suspended sentence, and the sheriff received
     a bench warrant from the court directing him
     to call upon the proper authorities of anoth-
     er county and pick up the defendant from the
     jail there and convey him to the McCulloch
     County jail. The sheriff nov makes a claim
     for conveyancemileage under the provisions
     of Article 1030, C.C.P. for this service. Is
     this mileage properly payable? Would the
     mileage be payable if the service had been
     performed on a capias issued under the pro-
     visions of Article 779, C.C.P.?
          “2.  A defendant was convicted In Mot-
     leg County of attempted arson and sentenced
     one to four years in the penitentiaryand
     was placed on probation.The sheriff claim-
     ed and was paid both arrest fee and mileage
     fee for services performed before sentence
     was given the defendant. The sheriff, sub-
     sequently, traveled 85 miles in arresting
                                                                   .
                                                               .




Hon. Robert S. Calvert, page 2 (V-1030)


       the defendant and qonvey$ng Ma back to his
       county on a warrant for violation of the
       probation. The sheriff claW,'an arrest fee
       and mileage fee for thl.sservice. Are elth-
       er of these fees properly payable? Uould a
       mileage fee be payable if the service had
       been performed on a bench warrant?
            'This Department has long construed a
       case to'be disposed of as far as the payment
       of fees is concernedwhen a suspended sen-
       tence Is rendered. In this connection,I am
       enclosing an opinion of your Department dat-
       ed March 17, 1913, for gou~ convenience. I
       also am enclosing a copy of an opinion dated
       August 1, 1934, which deals with a stiilar
       situation.*
               We quote the following provisions of ArtZcles
779,   781b,    1020 and 1030, V;C.C.P.%


             "1: Upon the final conviction of the de-
       fendant of any other felang, pending the EUS-
       pension of sentence, the court granting such
       suspension shall cause a oaplas to issue fop
       the arrest   of the defendant if he is not then
       In the custody of such court, and during a
       term of the court, shall pronounce sentence
       upon the original judgment of conviction,   and
       shall cumulate the ptuzisbment  of the first
       with the punlshinentof any subsequent convic-
       tion OP ConvIctlons,and in such cases no new
       trial shall be granted in the first oonvlc-
       tion, HOP shall the validity OP f@ality of
       the first convlztlonbe attacked by appeal OP
       othemlse, and no right of appeal shall exist
       to test the validity of the judgment of con-
       viction,   sentence upon which was suspended.
            “2.  Upon the final conviction of the de-
       fendant of any character OF grade of the of-
       fenses of theft, embezzlement,swindling, oon-
       version, theft by ballee, or any fraudulent
       acquisition of personal property, pending the
       suspension of sentence, the court granting
       such suspensionmy cause a caplas to issue
       for the arrest of the defendant,if he is not
Eon. Robert S. Calvert, page 3 (V-1030)


    then in the custody of such court, and during
    the term of the court my pronounce sentence
    upon the original judgment of conv%etion,and
    may cumulate the punishment of the first with
    the punishment of any such subsequent convic-
    tion or convictions,and in such cases no new
    trial shall be granted in the first convlc-
    eon. The term kay, t as herein used, shall
    not be construed to be mandatory;”
     “Art. 781b . . .
          “Sec. 5. At any time during the period
    of probation such courts may Issue a warrant
    for violation of any of the conditions of the
    probation and cause the defendant to be ar-
    rested. Any probation and psrole officer, po-
    lice officer OP other officer with power of
    arrest may arrest such defendantwithout a
    warrant upon the request of the judge of such
    courts; A probationer so arrested may be de-
    tained in the county jail OF other appropriate
    place of detention until he can be taken be-
    fore the court. Such probation and parole of-
    ficer shall forthwith report such arrest and
    detention to such courts and subtit in writing
    a report showing in what manner the probation-
    er has violated his probation. Thereupon, the
    court shall cause the Uefendant to be brought,
    before it and, after a heaping without a jury,
    may continue or revoke the probation and shall
    in such case proceed to deal with the case as
    If there had been no probation. If the defen-
    dant is arrested In a oounty or district in
    the State of Texas other than that In which he
    was convicted,the probation and parole offi-
    cer, upon the written request of the senteno-
    Ing judge, shall furnish such courts a report
    concerning said probationer,and such courts
    shall have authority after a hearing to con-
    tinue or revoke probation and shall in such
    case proceed to deal with the case as if there
    had been no probation. In such case, the
    clerk of the court in which the order of revo-
    cation is Issued shall forward a transcript
    of such order to the clerk of the court of
    original jm3sdiction, and the clerk of that
    court shall proceed as if the order of Fevoca-
    tlon had been Issued by the court of original
Robert S; Calvert, page 4 (V-1030)


jurisdiction. Any probationerwho removes
himself from the State of Texas without per-
mission of the court placing Nm on probation
or the court to which jurisdictionhe has
been transferredshall be deemed and oonsld-
ered a fugitive from justice and shall be sub-
ject to extraditionas now provided by law.
Ho part of the time that the defendant is on
probation shall be consideredas any part of
the time that he shall be sentenced to serve.
The right of the probationerto appeal to the
Court of Crlndnal Appeals for a review of the
trial and conviction,as provided by law shall
be accorded the probationer at the time he is
placed on probation. When he is notified that
his probation is revoked for violation of the
conditions of probation and he is aalled on to
serve a jail or penitentiarysentence he may
appeal the revocation."
     *Sec..31. For the purpose of determining
when fees are to be paid to any officer or of-
floe, the placing of the defendant on proba-
tion shall be considereda.final disposition
of that case, without the necessity of waltlag
for the terminationof the period of probation
or suspension of sentence,'
"Art. 1020 6 i .
     'Sheriffsand Constables serving process
and attendingany exam&lng court in the ex-
amination of any felony case, shall be entit-
led to such fees as are fixed by law for elm-
ilar services in nilsdemeanor cases in County
Court to be   id b the State, not to exceed
Four and Top"
            100 ($x+00) Dollars ¶.nany one
case, and mileage actually and necessarily
traveled in going to the~place of arrest, and
for conveying the prisoner or prisoners to
jail as provided in Articles 1029 and 1030,
Code of Criminal Procedure, as the facts may
be, but no mileage whatever shall be paid for
summoning or attaching witnesses in the coun-
ty where case Is pending. Provided no sheriff
or constable shall receive hsn the State any
additicmalmileaRe for any subsequentarrest
of a defendant In the same case. or in an??oth-
er oase in an examining court or In any distrZct
Hon. Robert   S. Calvert,   Page 5 (v-1030)



     court based UPOIIthe same charne or uuon the
     same criminal act. or arowina out of the same
     criminal transaction.whether the am-eat is
     made with or wtthout a warrant* or before or
     after izrdictment.and in no event shall he be
     allowed to duplicate hls fees for mlleane for
     maklnu arrests, with or without warrant. or
     when two or more warrants of arrest or caDi-
     ases are served or could have been served on
     ‘fbesame defendant on any one dae.”(Empbasls
     added.I
     “Art. 1030 . . .
          “In each county where there have been
     cast at the preceding presidentialelection
     less than 3000 votes, the sheriff OP consta-
     ble shall receive the following fees when the
     charge is a felony:
          “1. FOP executing each warrant of arrest
     or capias, OP for plakingarrest without war-
     rant, when authorized by law, the sum of one
     dollar; and five cents for each mile actually
     and necessarily traveled in going to place of
     arrest, and for conveying the prisoner or pri-
     soners to jail, tileage, as provided for in
     subdivision4 shall be allowed: provided, that
     In counties that have a population of less
     than forty thousand inhabitants,as shown by
     the preceding Federal oensus,thefollowing
     fees shall apply: FOP executing each warrant
     of arrest or caplas, OP for making arrest
     without warrant, when authorizedby law,
     three dollars and fifteen cents for each tile
     actually and necessarily traveled In going to
     place of arrest, and for conveyingprisoners
     to jail, mileage as provided for in subdivi-
     sion 4 shall be allowed; and one dollaf;shall
     be allowed for the approval of a bond.
          “4. For removing a prisoner, for each
     mile going and coming, Including guards and
     all other expenses,when travelingby rail-
     road, ten cents; when traveling otherwise
     than by railroad, fifteen cents; provided,
     that when more than one prisoner Is removed
     at the same time, in addltlon to the forego-
Hon. Robert S; Calvert, page 6 (V-1030)


    ing, he shall only be allowed ten cents a
    mile for each additional prisoner.'
          Uhere a defendant convicted of a felony is
granted a suspended sentence and during the period of
suapenslonhe is finally convicted of a felony or ~sozue
other crlme named in Article 779 which requires the
court to revoke the suspended sentbnce, the court in
which he was originally convicted is authorieed to i8-
8Ue a caplaa for Ns arrest under the provisions of
Article 779. If a defendant convicted of a felony 18
placed on probation and he later violates any provisions
of the probation, the aourt granting the probation is
authorized by Article 781b to issue a warrant for hi8
arrest.
          In Attorney General Opinion Ho. 3011, dated
December 13, 1937, and approved in Opinion 190,V-1008,
it was held that a bench warrant is not contemplatedas
a warrant of arrest OP capias as provided in subclivl-
8ion 1 of Article 1029, but it is merely m order by
the District Judge for the sheriff to proceed to a cer-
tain place and get a prisoner whom he has already had
in custody and upon whom he has already served a caplas
or warrant of arrest. We quote the followlag from said
opinion:
         "A bench warrant is a common law process
    not defined by the Statute of Texas, and al-
    though the courts In Oxford va Berry, 170 B.W.
    83, 204 MZch. 197, and in Rx Parte Lowe, 251
S.W. 506, have defined a bench warrant as a
    warrant of arrest, they further say that it is
    sometimes used to bring a convict confined in
    the penitentiaryto trial In another case, and
    we are of the opinion that a bench warrant 18
    not contemplatedas being a warrant of arrest
    OP capias as provided in SUbdiviBfon 1 of Ar-
    ticle 1029, but it is merely an order by the
    District Judge in ca8es such as those submit-
    ted In your question for the sheriff to pro-
    ceed to a certain place and get a prisoner
    whom he has already had in custody and upon
    whom he has already served the capias or war-
    rant of arrest and returned the body of such
    prisoner to the court ls8ting the order. It
    is not an ordinarywarrant of arrest direct-
    ing the sheriff to arrest the person named
Hon. Robert S. Calvert, page 7 (V-1030)


    therein where ever found, but on the other
    hand it is an order directed to the officer
    or person having custody of the prisoner or-
    dering such officer or other person to de-
    liver the prisoner to the sheriff for the
    purpose of convepng him to the court issu-
    ing the warrant.
         In Gaines vi State, 53 SiW. 623 (Tex. Calm.
              t in discussing the effect of a benah
              :
         "Appellant excepted to the action of the
    court in hav    him brought from the peniten-
    tiary at Rus    e being confined there onan-
    other Case) t0 stand hi8 trial in this case,
    It being contended that It was not competent
    for the state to do this. There is nothing
    in this contention. While we know of no pro-
    cedure authorized by legislationto bring a
    defendant from the penitentiaryto scanecourt
    for trial in another 0888, yet there is no
    law to the contrary, and euoh has been the
    usual practice; and we fall to see how a de-
    fendant can be heard to complain that the pen-
    itentiarg authorities surrenderedhim to the
    local authorities for trial on some indictment
    pending against him. The legislaturehas au-
    thorized the penitentiaryboard to make cer-
    tain rules in regard to the conduct of the
    convicts confined and under their charge, and
    we understand the prison authoritieshave pro-
    vided a rule recognizingthe authority of diS-
    trict judges to Issue wz$ts for prisoners con-
    fined in the penitentiaryto be brought before
    the court for trial in any case that may be
    pending against them. This would seem to be
    sufficientauthority'tobr%ng the prisoner be-
    fore the court."
          Although a bench warrant may at Waes be wed
as a warrant of arrest (Rx Parte Lowe, 251, SiW.506, Tex;
Grim. 1923), it 18 OUP opinion, in view of the foregoing,
that asaIpatter of practice the courts of this State do
not use the bench warrant for the purpose of arrest but
on the other hand it is used as an order directed to the
person or officer having custody of the prisoner Order-
ing such officer or other person to deliver the prisoner
to the sheriff for the purpose of conveyinghim to the
Eon. Robert S. Calvert, page 8 (V-1030)


court issuing the warrant. Therefore, a bench warrant
as used by the OOUrt8 of this State is not a warrant of
arrest,withfnthe meaning of Article 1020, V.C.C.P.
          In Attorney General Opinion dated August 1,
1934, to the Comptroller,this office was construingthe
above quoted provisions of Article 1020. The question
was whether or not said provisions prohibited the pay-
ment of mileage fee8 to a sheriff who executes a capias
under Article 819, V.C.C.P., which provide8 that a capi-
as for the arrest of the defendant may be Issued where
the Court of Criminal Appeal8 ha8 affirmed a conviction
in a felony case; It wa8 held in this opinion that the
prohibition contained in Article 1020 wa8 not l-ted to
examining trials but applied to any subsequentarrest in
the same case or growing out of the same arimlnal trans-
action whether the arrest was made before or after ln-
dictment.
          Therefore, it is our opinion that the provi-
sions of Article 1020 would apply to subsequentarrests
of a defendant for violation of his suspended sentence
OF probation, since it 18 an arrest in the same case or
the arrest arises out of the 8am criminal transaction;
          The facts contained in your first question re-
veal that the sheriff received the bench wamant dlrect-
lng him to call upon the proper authorities of another
county and pick up the defendant and convey him to the
McCulloch County jail; As noted above, this does not
constitutea warrant of arrest within the meaning of
Article 1020, and since the prohibition contained in
Article 1020 applies to 'any subsequentarrest of a de-
fendant in the 8ame case;" this prohibitionwould not
amly.   Furthermore, the prohibitionIn Article 1020
applies to "additionaltileage." Therefore, the prohl-
bition does not apply where the sheriff In question ha8
not received, up to that time, an mileage, and you are
advised that he Is entitled to ti
                               -s cage fees provided for
in subdivision4 of Article 1030 for removing a prisoner.
          If a capias were issued rather than a bench
warrant, the sheriff would be entitled to mileage fees
provided for in Article 1030 unless he has already been
bald mlleage fees in a prior arrest In the same case or
in an arrest arising out of the 8sIU0criminal transac-
tion.
.




    Hon. Robert S. Calvert, page 9 (V-1030)


              Section 5 of Article 781b above quoted, show8
    that a revocation of probation for a violation of any of
    the condition8 of the probation is a continuationof the
    original case; Therefore an arrest for violation of
    probation is an arrest arising out of the Same case or
    one growing out of the same criminal tranaaotionwithin
    the m8anlng of Article 1020.
              The facts in your second question show that the
    sheriff has received arrest fees and mileage fees for
    services performed before the original sentence. There-
    fore, it is our opinion that the prOViSi0nS of Article
    1020 prohibit the sheriff from receiving additionalmlle-
    age fees for making an arrest of the defendant and oon-
    veying him back to his county on a warrent of arrest for
    violation of the probation.
              If the service referred to had been performed
    on a bench warrant rather than a warrant of arrest as
    contemplatedabove, the sheriff would be entitled to his
    mileage fees under the prOVi8iOnS of subdivision 4 of
    Article 1030 for the rea8onS stated in our answer to your
    first question.


              The sheriff who executes a bench warrant
         on a defendant whose suspended sentence ha8
         been revoked or on a defendant on probation
         who has Violated any of the conditions of the
         probation, Is entitled to mlleage fees pursu-
         ant to the provisions of subdivision4 of Ar-
         ticle 1030, V.C.C.P., and the prohibition
         contained in Article 1020, V.C.C;PI, against
         the payment of an additionaltileage fee in
         the 8ame case or arising out of the same crlm-
         inal transactionI.8not applicable. The sher-
         iff who executes a capias on a defendant whose
         suspended sentence has been revoked would be
         entitlea to mileage fees provided for in sub-
         division 4 of Article 1030, unless he has al-
         ready been paid mlleage fees in a prior arrest
         in th8 same 0888 or in an arrest arising out
         of the same criminal transaction; Th8 sheriff
         is not entitled to mileage fee8 for 811arrest
         of the defendant violating probation where the
         sheriff has Pec8lVed arrest and ndleage fee8
         prior to the o~iglnal sentence for such subse-
         quent arrest is an arrest arising out of the
Eon. Robert S; Oaloert, page 10 (V-1030)


     fame criminal transaction. Arts: 779, 781b,
     1020 apd 1030,
     SiW.f506 (Tex. Crl8ii
     53 s;w. 623 (Taxi Grin.
     wo; 3011, dated D8Cemb8r
     ion.dated August 1; 1934, to the Cmtroll8r;
     A.@; opinion Bo. v-1008;
                            Your8 very truly,
                              PRICE WRIEL
                            Attorney General
APPROVED:
J. C; Davis, Jr.
County Affairs Division
                                     Assistant
Charles D; Mathews
Executive Asal.StEint
JRimw:bh