If city police arrest someone for a state crime, does the county jail have to take them?

Plain-English summary

A state senator brought the Attorney General a turf fight between the City of Odessa and Ector County: when city police arrest someone for breaking a state criminal law, which government has to lock the person up and pay for it? The Attorney General answered each of the senator's three questions in the county's direction.

First, if a city officer arrests a person for violating a state criminal statute and a magistrate issues a commitment order, the county must incarcerate the person. Article 2.18 of the Code of Criminal Procedure says that when a prisoner is committed to jail by warrant from a magistrate or court, the sheriff shall place the prisoner in jail, and letting such a prisoner stay out of jail is a violation of the sheriff's duty. An earlier opinion, JM-151 (1984), had already read that article to require a county jail to accept state-law violators once a magistrate committed them.

Second, a municipal court judge can issue that commitment order, even when the charge is a class A or B misdemeanor that the municipal court itself cannot try. Article 16.20 defines a commitment as an order signed by the "proper" magistrate, and article 2.09 lists municipal-level judges among the magistrates. Some had argued that because a municipal judge cannot try class A and B misdemeanors, the judge is not a "proper" magistrate. The office disagreed: read in context, "proper" refers to venue, meaning a magistrate who holds office in the proper county, not to the judge's trial jurisdiction. So a municipal judge could issue a valid commitment order.

Third, if the sheriff refuses to take the prisoner, the county still bears the cost. Once a magistrate issues a commitment order, the duty to incarcerate and the costs that come with it fall on the sheriff. The office noted JM-1009 (1989), which had held that a city is relieved of maintenance costs for prisoners who violated municipal traffic ordinances implementing article 6701d once the county sheriff accepts them. Here the sheriff had not accepted the prisoners, but the office stressed that the refusal was not a discretionary choice; it was a violation of the article 2.18 duty, and a sheriff cannot dodge the cost of a duty by refusing to perform it. The responsibility for maintaining these state-law prisoners therefore fell on the county.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Code of Criminal Procedure articles cited here have been amended and renumbered in places since 1995, and article 6701d, the old uniform traffic act, was repealed and recodified into the Transportation Code. The general rule that a sheriff must accept a prisoner committed by a magistrate remains familiar, but verify the current statutes before relying on any specific article number or cost allocation described on this page.

What the opinion meant for those who asked

For counties and sheriffs: The opinion concluded that a county jail had to accept a person committed by a magistrate on a state criminal charge, and that a sheriff's refusal to take custody was a breach of the article 2.18 duty, not a discretionary call. The county, not the arresting city, carried the cost of holding the prisoner.

For cities and municipal courts: The opinion concluded that a municipal court judge was a "proper" magistrate able to issue an enforceable commitment order, including for class A and B misdemeanors the municipal court could not itself try, so long as the judge held office in the proper county for venue.

For the legislators refereeing the Odessa/Ector County dispute: The opinion gave a rule for sorting incarceration responsibility: the magistrate's commitment order, not the level of the arresting agency, was what placed the duty and cost on the county.

Common questions

Does a county jail have to accept someone arrested by city police for a state crime?
Yes, once a magistrate issues a commitment order. The Attorney General read article 2.18 of the Code of Criminal Procedure and Opinion JM-151 to require the sheriff to take the prisoner.

Can a municipal judge issue a commitment order for a class A or B misdemeanor?
Yes. A municipal judge is a magistrate under article 2.09, and the office concluded that the word "proper" in the commitment statute refers to venue (holding office in the right county), not to whether the judge can try the offense.

Who pays to hold the prisoner if the sheriff refuses to take custody?
The county. The office concluded that a sheriff's refusal is a violation of duty, not a discretionary choice, and a sheriff cannot avoid the cost of the duty by declining to perform it.

Did this mean a sheriff must jail someone for a city ordinance violation alone?
No. The opinion took care to note that it did not overrule MW-52 (1979), which held that a sheriff has no duty to confine a person in the county jail solely for violating a municipal ordinance. The duty here turned on a state-law charge.

Background and statutory framework

The dispute arose under the Code of Criminal Procedure's commitment provisions. Article 2.18 provides that when a prisoner is committed to jail by warrant from a magistrate or court, the sheriff shall place the prisoner in jail, and the office had previously construed that duty in Attorney General Opinion JM-151 (1984) to require a county jail to accept state-statute violators after a magistrate's commitment. Article 16.20 defines a "commitment" as an order signed by the proper magistrate directing a sheriff to receive and jail the person committed, and lists the order's requisites, including a statement, when the prisoner is sent out of the county where the prosecution arose, that there is no safe jail in the proper county. Article 2.09 defines "magistrate" to include the justices of the peace and the mayors, recorders, and judges of the city courts of incorporated cities or towns, which is why a municipal court judge qualifies. The office read the "no safe jail in the proper county" requisite together with the "proper magistrate" language and concluded "proper" goes to venue, not trial jurisdiction.

On cost, the office relied again on article 2.18 and JM-151, and pointed to JM-1009 (1989), which had addressed maintenance costs for prisoners who violated municipal traffic ordinances implementing article 6701d, V.T.C.S. JM-1009 treated those prisoners as state-statute violators and relieved the city of maintenance once the county sheriff accepted them. The office distinguished a sheriff's refusal to accept as a breach of duty under article 2.18 rather than an exercise of discretion, so the cost still devolved on the county. A footnote preserved Attorney General Opinion MW-52 (1979): a sheriff has no duty to confine a person in the county jail solely for the violation of a municipal ordinance, a point this opinion did not disturb.

Citations

Statutory provisions discussed:

• Code Crim. Proc. art. 2.18 (sheriff must place a committed prisoner in jail)
• Code Crim. Proc. art. 16.20 (definition and requisites of a warrant of commitment)
• Code Crim. Proc. art. 2.09 (definition of "magistrate," including municipal-level judges)
• article 6701d, V.T.C.S. (uniform traffic act referenced via JM-1009)

Attorney General opinions discussed:

• JM-151 (1984) and JM-1009 (1989) (relied on); MW-52 (1979) (left undisturbed)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0313
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0313.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

January 9, 1995

Honorable John T. Montford
Chair
Finance Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-313

Re: Whether a county is required to accept warrantless arrestees from a municipal police department, and related questions (RQ-606)

Dear Senator Montford:

In view of a dispute between the City of Odessa (the "city") and Ector County (the "county") as to who is responsible for incarcerating certain persons arrested by the city police for the violation of state criminal provisions, you have asked this office a series of questions.

You ask first whether, if a city police officer arrests a person for violating a state criminal statute and a magistrate issues a commitment order for the person, the county is required to incarcerate the person. In our view, Attorney General Opinion JM-151 (1984) and article 2.18 of the Code of Criminal Procedure both answer this question in the affirmative.

Article 2.18 of the Code of Criminal Procedure provides that "[w]hen a prisoner is committed to jail by warrant from a magistrate or court, he shall be placed in jail by the sheriff." To permit such a prisoner to remain out of jail "is a violation of duty on the part of [the] sheriff." Accordingly, Attorney General Opinion JM-151 held that a county jail was required to accept state statute violators after a magistrate had committed them to the jail. JM-151, at 2.[1]

Your second question concerns whether a municipal judge may issue such a commitment order, particularly when the offense charged is a class A or B misdemeanor. The warrant of commitment is defined by article 16.20 of the Code of Criminal Procedure, which further stipulates its requisites. According to article 16.20, "A 'commitment' is an order signed by the proper magistrate directing a sheriff to receive and place in jail the person so committed."

"Magistrate" is defined by article 2.09 of the Code to include, inter alia, "the justices of the peace, the mayors and recorders and the judges of the city courts of incorporated cities or towns." Accordingly, a municipal court judge is a magistrate for the purposes of article 16.20.

It has been suggested that municipal court judges, however, are not "proper" magistrates, and therefore lack power to issue enforceable commitment orders, because they cannot try class A and B misdemeanors. The term is not defined in the statute. However, reading article 16.20 in its entirety, we are satisfied that "proper" refers to venue only. One of the requisites of the commitment order is "[w]hen the prisoner is sent out of the county where the prosecution arose, the warrant of commitment shall state that there is no safe jail in the proper county." In our view, reading this requirement together with the reference to a "proper magistrate," a proper magistrate is one who holds office in the proper county. Accordingly, we find no basis for the argument that municipal judges may not issue commitment orders for persons accused of class A or B misdemeanors.

You ask, finally, who is responsible for the cost of incarceration if a municipal court judge issues a commitment order and the sheriff refuses to take custody of the prisoner. We believe that Attorney General Opinion JM-151 and article 2.18 answer this question as well. Once a magistrate has issued a commitment order, the duty to incarcerate the prisoner, along with the necessary cost incident thereto, falls upon the sheriff.

Attorney General Opinion JM-1009 leads to the same conclusion. In that opinion, the question was posed whether a city or a county was responsible for the maintenance of prisoners who had violated city traffic laws that implemented article 6701d, V.T.C.S. This office answered:

Because persons incarcerated for violating municipal traffic ordinances that implement article 6701d are considered state statute violators, the city is relieved of its obligation to provide for the maintenance of such prisoners once they are accepted for incarceration by the sheriff of the county.

JM-1009 (1989) at 6.

In your hypothetical, the sheriff has not accepted the prisoners. However, the refusal to do so is not an exercise of discretion, but is rather, according to the plain language of article 2.18, a violation of duty. The sheriff cannot avoid the cost of his duty by refusal to undertake it. Accordingly, once the commitment order is issued, the responsibility for maintaining these state law prisoners devolves upon the county.

SUMMARY

If a city police officer arrests a person for violating a state statute and a magistrate issues a commitment order for the prisoner, the county is required to incarcerate the prisoner. A municipal court judge is a proper magistrate to issue such an order if he holds office in the proper county for venue purposes. Should the sheriff refuse to take custody of the prisoner, the county is responsible for the prisoner's maintenance.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James Tourtelott
Assistant Attorney General

[1] Attorney General Opinion JM-151 did not overrule, and this opinion should not be construed to overrule, Attorney General Opinion MW-52 (1979), which held that a sheriff has no duty to confine a person in the county jail solely for the violation of a municipal ordinance.