When does an arrested person become the county sheriff's responsibility in Texas?

Plain-English summary

A Collin County prosecutor asked when a county sheriff has to take custody of a person who was arrested by a different law enforcement agency and ended up in the hospital because of injuries from that arrest. The worry was practical: if some city or other agency's officers arrest and injure someone, and that person is taken to a medical facility, at what point does the sheriff (and the county that pays the sheriff's bills) become responsible?

The Attorney General answered that the trigger is the magistrate's commitment order, not the moment the person arrives at the jail. Under article 2.18 of the Code of Criminal Procedure, when a prisoner is committed to jail by warrant from a magistrate or court, the sheriff must place the prisoner in jail, and it is a violation of duty for the sheriff to let a committed defendant remain out of jail. Drawing on a 1995 opinion, DM-313, the AG explained that once the commitment order issues the sheriff has no discretion to refuse the prisoner and cannot dodge the cost by declining to take custody. The opinion agreed that simply being arrested somewhere in the county does not by itself make a person the county's prisoner; what changes the picture is the commitment order. So a hospitalized arrestee becomes the sheriff's responsibility, with the attendant costs falling on the county, from the time the commitment order is issued.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Sheriffs (what the opinion held for them): The opinion held that once a magistrate issues a commitment order directing the sheriff to receive and place a person in jail, the sheriff must take custody and has no discretion to refuse, even if the person is hospitalized from injuries sustained during an arrest by another agency.

Counties (what the opinion held for them): The opinion held that the duty and its attendant costs devolve upon the county when the commitment order issues. At the time of the opinion, the county was liable under article 104.002 for expenses incurred in the safekeeping of prisoners confined in the county jail or kept under guard by the county.

Other arresting agencies (what the opinion held for them): The opinion held that the mere fact that a person was arrested within the county's jurisdiction did not make that person a prisoner of the county; responsibility shifted to the sheriff only on the commitment order.

Common questions

Does a sheriff have to take custody of someone another agency arrested?
Under this opinion, yes, once a magistrate issues a commitment order. Before that, the opinion said the mere fact of arrest by another agency in the county does not make the person the county's prisoner.

Does the sheriff's duty start when the person reaches the jail?
No. The opinion rejected that reading, concluding the duty and its costs attach when the commitment order is issued, not when the prisoner is physically delivered to the jail.

Can a sheriff refuse a prisoner to avoid the medical or jail costs?
The opinion said no. Citing DM-313, it explained that refusing is not an exercise of discretion but a violation of duty, and the sheriff cannot avoid the cost by declining to undertake it.

Who pays for a hospitalized prisoner?
At the time of the opinion, the county was liable under article 104.002 for expenses incurred in safekeeping prisoners confined in the county jail or kept under guard by the county. Verify current cost-allocation law before relying on this.

Background and statutory framework

The opinion rests on article 2.18 of the Code of Criminal Procedure, which 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 that it is a violation of duty for a sheriff to permit a so-committed defendant to remain out of jail. The commitment order itself comes from art. 16.20, directing the sheriff to "receive and place in jail the person so committed." Local Government Code section 351.041(a) requires the sheriff to safely keep all prisoners committed to the jail by lawful authority, and article 104.002(a) makes the county liable for expenses of safekeeping prisoners confined in the county jail or kept under guard by the county.

The controlling interpretation came from Attorney General Opinion DM-313 (1995), where the AG concluded an Ector County sheriff could not refuse prisoners that Midland city police had arrested for state-law violations after a municipal judge issued a commitment order. The opinion also cited MW-52 (1979) (no duty to jail a person solely for a municipal ordinance violation), JM-151 (1984) (county jail must accept state-statute violators once committed), and H-169 (1973) (sheriff's duty to see prisoners committed in a city outside the county seat are transported to the county jail). Reading these together, the opinion found the timing rule clear: the commitment order, not delivery to the jail, is what fixes the sheriff's and county's responsibility.

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. arts. 2.18, 16.20 (Vernon 1977)
• Tex. Code Crim. Proc. Ann. art. 104.002(a) (Vernon Supp. 2000)
• Tex. Loc. Gov't Code Ann. § 351.041(a) (Vernon 1999)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. DM-313 (1995)
• Tex. Att'y Gen. Op. No. MW-52 (1979)
• Tex. Att'y Gen. Op. No. JM-151 (1984)
• Tex. Att'y Gen. Op. No. H-169 (1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0312
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0312.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

November 30, 2000

The Honorable Tom O'Connell
Criminal District Attorney
Collin County Courthouse
210 South McDonald, Suite 324
McKinney, Texas 75069

Opinion No. JC-0312

Re: Responsibility of a sheriff for taking custody of a person hospitalized for injuries sustained while being arrested by law enforcement officers of a different jurisdiction (RQ-0263-JC)

Dear Mr. O'Connell:

You have asked this office when a sheriff is responsible for taking custody of a prisoner hospitalized as a result of "an injury or illness that was sustained during [the] arrest" by another law enforcement agency.[1] In our view, your question is answered by article 2.18 of the Code of Criminal Procedure and by the interpretation this office gave that statute in Attorney General Opinion DM-313. Briefly, a prisoner becomes the sheriff's responsibility "[w]hen [he] is committed to jail by warrant from a magistrate or court." TEX. CODE CRIM. PROC. ANN. art. 2.18 (Vernon 1977). "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." Tex. Att'y Gen. Op. No. DM-313 (1995) at 2 (emphasis added). The sheriff has no discretion to refuse to take such a prisoner into custody and "cannot avoid the cost of his duty by refusal to undertake it." Id. The prisoner is the sheriff's responsibility as soon as the commitment order issues because the sheriff must "safely keep all prisoners committed to the jail by a lawful authority, subject to an order of the proper court." TEX. LOC. GOV'T CODE ANN. § 351.041(a) (Vernon 1999).

As we understand it, your question arises from a situation in which a prisoner has been arrested by another law enforcement agency and has, as a result of that arrest, required hospitalization. You note that, pursuant to article 104.002 of the Code of Criminal Procedure, the county is liable for "all expenses incurred in the safekeeping of prisoners confined in the county jail or kept under guard by the county." TEX. CODE CRIM. PROC. ANN. art. 104.002(a) (Vernon Supp. 2000). However, you assert, "[t]he article does not require the sheriff to assume custody of prisoners that have been taken to medical facilities by other agencies." Request Letter, note 1, at 1.

We agree that the mere fact that a person has been arrested by some law enforcement agency within Collin County's jurisdiction does not make that person a prisoner of the county. See Tex. Att'y Gen. Op. No. MW-52 (1979) at 2, 3 (sheriff has no duty to confine person in county jail solely for violation of municipal ordinance). However, when a magistrate issues a commitment order directing that the sheriff "receive and place in jail the person so committed," TEX. CODE CRIM. PROC. ANN. art. 16.20 (Vernon 1977), the prisoner forthwith becomes the responsibility of the sheriff. Article 2.18 of the Code of Criminal Procedure provides, "[w]hen a prisoner is committed to jail by warrant from a magistrate or court, he shall be placed in jail by the sheriff. It is a violation of duty on the part of any sheriff to permit a defendant so committed to remain out of jail[;] he shall so guard the accused as to prevent escape." Id. art. 2.18; see also Tex. Att'y Gen. Op. Nos. JM-151 (1984) at 2 (county jail is required to accept state statute violators after magistrate has committed them to jail); DM-313 (1995) at 2 (sheriff cannot avoid cost of incarcerating prisoner by refusing to take custody after commitment order is issued).

In Attorney General Opinion DM-313, the question was posed whether the Ector County sheriff could refuse to accept prisoners arrested by the Midland city police for violations of state statutes after a municipal judge had issued a commitment order for those prisoners. On the basis of article 2.18 of the Code of Criminal Procedure, the opinion answered that question in the negative. It noted that a refusal to accept such prisoners "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." Tex. Att'y Gen. Op. No. DM-313 (1995) at 2 (emphasis added).

You suggest that "when a commitment order does exist it is unclear as to how the sheriff's duty under Texas Code of Criminal Procedure Art. 2.18 should be interpreted." Request Letter, supra note 1, at 2. We disagree. In our view, the clear import of the statutory language, and of its interpretation by Attorney General Opinion DM-313, is that the prisoner is the sheriff's responsibility from the time of the issuance of the commitment order. "It is a violation of duty on the part of any sheriff to permit a defendant to remain out of jail[;] he shall so guard the accused as to prevent escape." TEX. CODE CRIM. PROC. ANN. art. 2.18 (Vernon 1977). This duty does not commence, as you suggest, "only when a prisoner is brought to the jail." Request Letter, supra note 1, at 2; see Tex. Att'y Gen. Op. No. H-169 (1973) at 2 (duty of sheriff to see that prisoners committed to jail by magistrate in city outside county seat are transported to county jail). Rather the duty and its attendant costs devolve upon the county "once the commitment order is issued." Tex. Att'y Gen. Op. No. DM-313 (1995) at 2.

SUMMARY

A person arrested by a law enforcement agency other than the sheriff's department, and hospitalized as a result of that arrest, becomes the responsibility of the sheriff, pursuant to article 2.18 of the Code of Criminal Procedure, upon the issuance by a magistrate of a commitment order directing that the sheriff "receive and place in jail the person so committed." See TEX. CODE CRIM. PROC. ANN. arts. 2.18, 16.20 (Vernon 1977).

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee

[1] Letter from Honorable Tom O'Connell, to Honorable John Cornyn, Texas Attorney General (July 31, 2000) (on file with Opinion Committee) [hereinafter Request Letter].