MELVIN PERRY AND NEXT FRIEND, PHYLLIS BROWN, PLAINTIFFS-APPELLANTS,

v.

CLARENCE JONES ET AL., DEFENDANTS-APPELLEES

Perry contends on appeal that:

1. The trial court erred in ruling that failure to take an arrestee before a magistrate to set bail, as required by Texas law, does not present a federal question.

2. The trial court erred in not proceeding on appellant’s state law pendent jurisdiction claim of false arrest and failing to take appellant before a magistrate upon his arrest.

3. The trial court erred (a) in failing to submit issues to the jury concerning appellant’s lost wages, mental suffering, and attorney’s fees, and (b) in holding that the jury’s answers to two of eight special issues was determinative of the entire case.

We think that as to the Chief of Police and Officer Johnstone the directed verdicts were properly granted. The Dallas Chief of Police had no knowledge of Perry’s arrest. He did not direct it or participate in it. He did not have Perry in his custody. In other words, he was in no way responsible for anything that happened to Perry. Policeman Johnstone obtained and reduced to writing the statements of witnesses who identified Perry as an armed robber. This was in the line of duty. He did not file the complaint. This was done by another officer, after reference to and clearance by the District Attorney’s Office.

Nor are the remaining defendants, Sheriff Jones and his Deputies, guilty of false arrest. When appellant identified himself to deputies holding a warrant for his arrest, their duty was to arrest him, Greenwell v. United States, 1964, 119 U.S.App.D.C. 43, 336 F. 2d 962, cert. denied, 380 U.S. 923, 85 S.Ct. 921, 13 L.Ed.2d 807. A police officer who arrests someone with probable cause or a valid warrant is not liable for false arrest simply because the innocence of the suspect is later established, Anderson v. Nosser, 5 Cir., 1971, 438 F. 2d 183, modified en banc, 456 F. 2d 835 (1972), cert. denied, 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89 (1972).

In Kulyk v. United States, 5 Cir., 1969, 414 F. 2d 139, 141-142, we held that “[t]he right under the federal rules to be promptly taken before a magistrate has not been given constitutional status and has not been applied to persons in state custody”. See, also, Edwards v. Holman, 5 Cir., 1965, 342 F. 2d 679, cert. denied, 384 U.S. 1017, 86 S.Ct. 1934, 16 L.Ed.2d 1039. Further, even though the failure to take Perry before a magistrate violates Texas law, it does not rise to the status of a denial of due process, Anderson v. Nosser, supra. See, also, Scarbrough v. Dutton, 5 Cir., 1968, 393 F. 2d 6; Baxter v. Rhay, 9 Cir., 1959, 268 F. 2d 40.

As to the matters discussed to this point in this opinion the judgment of the District Court is affirmed.

This leaves only the question of whether the District Court, as a matter of pendent jurisdiction, should have submitted Perry’s false imprisonment claims to the jury.

Article 15.17 of the Vernon’s Ann. Texas Code of Criminal Procedure requires that an arrested person shall without unnecessary delay be taken before some magistrate of the county in which the arrest takes place; this duty is to be performed by the person making the arrest, or he shall have it done.

It appears to be the law of Texas that a failure of the arresting officer in this regard may give rise to an action for false imprisonment, see Moore v. State, 149 Tex.Cr.App. 229, 193 S.W. 2d 204 (1946); Heath v. Boyd, 141 Tex. 569, 175 S.W. 2d 214 (1943); King v. Roberts, 49 S.W. 2d 991 (1932), affirmed, 125 Tex. 623, 84 S.W. 2d 718.

Deputies Smith and Gafford arrested Perry but they did not take him before a magistrate, nor did they have it done by others. Likewise, Sheriff Jones and Jailor Kitching allowed Perry to remain in jail without the benefit of the right.

Accordingly, Perry’s complaint stated a cause of action against these four defendants for false imprisonment.

The District Court declined to submit this aspect of the case to the jury. We think this was error, see Anderson v. Nosser, supra, 438 F. 2d at 196 and 456 F. 2d at 838; United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). This case is not like Lazier v. Weitzenfeld (5 Cir., 1975), 505 F. 2d 896, in which there was no factual basis for an alleged violation of federally guaranteed constitutional rights.

To this extent the judgment of the District Court is vacated and remanded for further proceedings not inconsistent herewith.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied for the reason that the District Court on remand may more effectively evaluate the argument presented by the petition for rehearing in the light of all the facts in the case, including appellant’s argument that he was not afforded an opportunity to furnish bail.