Did Bexar County Jail have to accept people arrested by city police for state-law violations before a magistrate committed them to the sheriff?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-151: City Arrestees and County Jail
Plain-English summary
JM-151 concluded that Bexar County Jail had to accept people arrested by municipal police for state-law violations only after a magistrate or court committed them to the jail.
"The Bexar County Jail is required to accept state statute violators only after a magistrate or court has committed them to the jail."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
Before commitment, the county could charge a city for housing its arrestees only if the city and county had an interlocal contract authorizing the charge.
"The county could collect this payment from the city if the two governmental bodies entered into an interlocal contract agreeing to this term."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
The district attorney's representative did not have to attend the magistrate's article 15.17 warning proceeding.
"The district attorney's presence is not required at the magistrate's proceeding pursuant to article 15.17 of the code."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
Currency note
This opinion was issued in 1984. 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.
Common questions
What practice prompted the request?
Bexar County Jail housed people arrested by city police for state-law violations but charged the arresting city $50 per day until the prisoner appeared before a magistrate.
"You inform us that Bexar County Jail provides housing for persons arrested by city police officers for violating a state statute. However, the county charges the city making the arrest $50 a day for each prisoner until he is taken before a magistrate."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
What had the arresting officer to do after an arrest?
The officer had to take the arrested person before a county magistrate without unnecessary delay.
"When a city police officer, or other person authorized by law arrests anyone, he must 'without unnecessary delay take the person arrested or have him taken before some magistrate of the county' where the arrest took place."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
What occurred at the magistrate appearance?
The magistrate gave the required constitutional warnings and considered bail when allowed by law.
"The magistrate performs the duties set out in article 15.17, including warning the arrestee of his constitutional rights and admitting him to bail if allowed by law."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
When did the sheriff's statutory responsibility begin?
The sheriff could voluntarily take custody earlier, but the opinion said no statute required county responsibility until magistrate appearance and commitment to the county jail.
"The sheriff may take custody of a prisoner lawfully arrested by a city police officer, thereby becoming responsible for the prisoner."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf"He is not, however, required by statute to take responsibility for a person arrested by city police until the prisoner is taken before a magistrate and committed to the county jail."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
Could the county impose a housing fee without an agreement?
No. The opinion found no law authorizing the charge without an appropriate interlocal contract.
"We are unable to find any provision of law authorizing the county to impose this charge on cities absent an appropriate contract."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
When did the district attorney have to attend a magistrate proceeding?
Article 2.01 required representation at an examining trial when the district attorney received notice and other duties did not prevent participation. The article 15.17 warning appearance was not such a trial.
"Thus, the legislature has expressly stated when the district attorney must attend a proceeding before a magistrate. The arrestee's appearance before a magistrate for statutory warnings is not such a proceeding."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
Background and legal framework
The opinion distinguished municipal-ordinance offenders, discussed in an earlier opinion, from city-police arrests for violations of state statutes.
"Attorney General Opinion MW-52 (1979) determined that a sheriff had no duty to confine in the county jail persons arrested for violating only a municipal ordinance."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
The Fifth Circuit had explained that the warning appearance did not involve state counsel and served to provide Miranda protections.
"The court refuted this contention, pointing out that appearance before a magistrate for statutory warnings does not involve counsel for the state but instead is for the purpose of complying with the requirements of Miranda v. Arizona, 384 U.S. 436 (1966)."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
Holding
"The Bexar County Jail is not required to accept state statute violators arrested by municipal police officers until the arrestee has appeared before a magistrate for statutory warnings and commitment to the county sheriff's custody. If it does accept such arrestees, the county may not charge the city a fee for housing them prior to commitment unless the city and county have contracted for that purpose. A district attorney's representative need not be present at the magistrate's hearing pursuant to article 15.17 of the Code of Criminal Procedure."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0151
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0151.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
May 2, 1984
Mr. Robert O. Viterna
Executive Director
Texas Commission on Jail Standards
P. O. Box 12985
Austin, Texas 78711
Opinion No. JM-151
Re: Whether a county jail must accept state statute violators delivered by municipal police officers, and related questions
Dear Mr. Viterna:
You inform us that Bexar County Jail provides housing for persons arrested by city police officers for violating a state statute. However, the county charges the city making the arrest $50 a day for each prisoner until he is taken before a magistrate. You ask the following questions about this practice:
(1) Must the Bexar County Jail accept all state statute violators delivered by municipal police officers (see Attorney General Opinion MW-52 regarding municipal offenders)?
(2) Must municipalities be required to pay for each individual until that person appears before a magistrate? Or,
(3) Must the violator appear before a magistrate prior to delivery to the Bexar County Jail?
(4) And, must a district attorney's representative be present at the magistrate's hearing?
City police officers are peace officers, authorized to make arrests under the Code of Criminal Procedure. Code Crim. Proc. arts. 2.12, 2.13.
When a city police officer, or other person authorized by law arrests anyone, he must "without unnecessary delay take the person arrested or have him taken before some magistrate of the county" where the arrest took place. Code Crim. Proc. art. 15.17; see also arts. 14.06, 15.16. Mayors, recorders, and judges of municipal courts are among the officers designated as magistrates by article 2.09 of the code. The magistrate performs the duties set out in article 15.17, including warning the arrestee of his constitutional rights and admitting him to bail if allowed by law.
Article 2.17 of the Code of Criminal Procedure, pertaining to a sheriff's duty, requires him to commit to jail the offenders he apprehends, subject to his duty to take them before a magistrate. The sheriff is also required to place in jail prisoners who are committed by warrant from a magistrate or court. Code Crim. Proc. art. 2.18. See also V.T.C.S. art. 5116(a). The sheriff may take custody of a prisoner lawfully arrested by a city police officer, thereby becoming responsible for the prisoner. Code Crim. Proc. art. 45.43; V.T.C.S. art. 5116. He is not, however, required by statute to take responsibility for a person arrested by city police until the prisoner is taken before a magistrate and committed to the county jail. See Attorney General Opinion H-169 (1973).
Attorney General Opinion MW-52 (1979) determined that a sheriff had no duty to confine in the county jail persons arrested for violating only a municipal ordinance. This opinion relied in part on article 45.05 of the code, which makes the city chief of police responsible for persons convicted of an offense in municipal court. It did not consider when the sheriff's duty arose to incarcerate a person arrested by city police for violating a state statute.
We answer your first and third questions as follows: The Bexar County Jail is required to accept state statute violators only after a magistrate or court has committed them to the jail.
Your second question concerns whether the cities may be required to pay for each prisoner's keep until he is brought before a magistrate. The county could collect this payment from the city if the two governmental bodies entered into an interlocal contract agreeing to this term. V.T.C.S. art. 4413(32c); see Attorney General Opinions MW-52 (1979); O-7353 (1946). However, it appears from the correspondence submitted with your request letter that the city and county have not entered into such an agreement. We are unable to find any provision of law authorizing the county to impose this charge on cities absent an appropriate contract.
You finally ask whether a district attorney's representative must be present at the magistrate's hearing. Article 2.09 of the Code of Criminal Procedure lists the officers who are magistrates:
Each of the following officers is a magistrate within the meaning of this Code: The justices of the Supreme Court, the judges of the Court of Criminal Appeals, the justices of the courts of Appeals, the judges of the District Court, the county judges, the judges of the county courts at law, judges of the county criminal courts, the justices of the peace, the mayors and recorders and the judges of the municipal courts of incorporated cities or towns.
We find no provision of law requiring a magistrate to await the arrival of the district attorney's representative before he gives the warnings required by article 15.17.
Article 2.01 of the code requires the district attorney to represent the state in examining trials in his district, when notified that one will take place and when other duties do not prevent his participation in it. See, e.g., art. 16.06 (examining trial procedure). A magistrate conducts examining trials. Code Crim. Proc. art. 16.01. Thus, the legislature has expressly stated when the district attorney must attend a proceeding before a magistrate. The arrestee's appearance before a magistrate for statutory warnings is not such a proceeding.
In McGee v. Estelle, 625 F.2d 1206 (5th Cir. 1980), cert. denied, 449 U.S. 1089 (1981), the relator contended that his appearance before a magistrate triggered the adversary process so that he was thereafter entitled to representation by counsel. The court refuted this contention, pointing out that appearance before a magistrate for statutory warnings does not involve counsel for the state but instead is for the purpose of complying with the requirements of Miranda v. Arizona, 384 U.S. 436 (1966). See also Wyatt v. State, 566 S.W.2d 597 (Tex. Crim. App. 1978). The district attorney's presence is not required at the magistrate's proceeding pursuant to article 15.17 of the code.
SUMMARY
The Bexar County Jail is not required to accept state statute violators arrested by municipal police officers until the arrestee has appeared before a magistrate for statutory warnings and commitment to the county sheriff's custody. If it does accept such arrestees, the county may not charge the city a fee for housing them prior to commitment unless the city and county have contracted for that purpose. A district attorney's representative need not be present at the magistrate's hearing pursuant to article 15.17 of the Code of Criminal Procedure.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
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