Case Information
*1 The Attorney General of Texas July 19, 1982 MARK WHITE
Attorney General opinion no. PllJ-497 Mr. Robert 0. Vitcrna
Supfma cuun BUilOlW Executive Director P. 0. Box us45 Texas Comieaiou on Jail Standards Be: Accrual of good Atmhl. lx. 7S711. 2545 credit by jail inmates P. 0. Box 12985 5W475-2591 Austin. Texas 78711 Tdex QlwS74-1357 Tdsopia 5121475mS5 Dear Mr. Viterna:
IS907 Main St.. Suite 1499
You have requested en opinion from this office concerning House Dallas. TX. 752914709 Bill No. passed by the Sixty-seventh Legislature which pertains 2141742.5944 the manual labor of county jail prisoners and the commutation of time for good conduct and for the perforuence of manual labor. Acts 1981. ,B24 Alberta Ave.. Sulle lo[) 67th Leg., ch. 708, at 2647. Rouse Bill No. 647 amends articles El Paso, TX. 789052792 and 45.53 of the Code of Criminal Procedure, and article 5118a. OlY532.34S4 V.T.C.S. 1220 Dallas Ave.. Suite 292 You first ask the following question: Houston. TX. 770026986
71318500566 1 of House Bill
No. 647 apply to work performed in the county 1106 Broadway. Suite 312 and/or the rehabilitation center?
LUobock. TX. 79401-347s Bw747-5235 Section 1 of House Bill No. 647 amends article 43.10 of the Code
of Criuinal Procedure. The provision the auended statute would spply to work perforned by a uisdeueanor during 43W N. Tenth. Suite B incarceration in the but only if such labor is used upon WAllan, TX. 755Ol.lSB5 312m82-b547 public improvements. Sec. 4. This office reached the same conclusion in opinions on a similar 209 Main Plaza. Suite 400 question concerning the use of misdemeanor convict laborers. Attorney San Antonlo. TX. 782052797 51212254191 General Opinions E-1101 (1977); O-3260 (1941). Itach of those two opiniona considered vhether it would be necessary to establish county workhouse or a county farm in order for a commissioner’s court An Equal Oppwlunityl to utilize labor of persons of misdemeanors. on public Aflirmativa Acllon Employer roads, bridges or other projects the county. Both opinions
construed the applicable language of articles 43.09 and 43.10 of the Code’ of Criminal Procedure and concluded labor of a misdemeanor convict could only be used upon public improvement. These remain identical in pertinent respect the earlier versions following recent amendments the Sixty-seventh Legislature.
Mr. Robert 0. Pitema - Page 2 mu-497)
Article 43.09 provides in relevant psrt: convicted a
When def eudaut is misdemeanor... he may... be put to vork the workhouse. or on the county farm, or on the public improveuents of the county....
Article 43.10 provides in relevant part:
1. Each comiasioners court x provide for the erection of a workhouse and the establiehuent of a county farm in connection therewith for the purpose of utilisiug the labor of said parties so convicted;
. . . . 4. They shall be put to labor upon public works....
It becomes clear when these two articles are read together the provisions 43.10 refer to three types of labor as set forth in article 43.09. You express coucero ia your request letter that a particular county has neither a workhouse nor a county farm. The comissioners court has authority to establish these facilities to utilize labor, but it is not required to do so.
You next ask: 1 of Eouse Bill
No. 647 apply to innate6 going to be transferred to TDC?
As already noted, section 1 of Eouse Bill go. 647 smende article 43.10 of the Code of Criuiual Procedure. Article 43.10 does not apply felouo who are in county jail merely awaiting transfer .to Department of Corrections. 43.10. its express term. applies “vhere the punishment assessed in a conviction for misdemeanor is coufinement in jail for uore than one day, or... the puniehuent is assessed only at a pecuniary fine and the party so convicted is unable to pay the fine.” Where a person is convicted of a felony, and the punishuent assessed is only a fine or term of or both,’ judgment may be satisfied same manner as a misdemeanor Code Criu. Proc. art. c9nviction. Thus, where a person of a felony is punished by jail time, a fine, or both, 43..10 spplies to him. ‘fhe punishment of confinement is to be distinguished from iuprisonuent in a Department of Corrections institution. See Code Grim. Proc. art. 42.09. il. Since an inmate who to x transferred the Department *3 . .
Mr. Robert 0. Viterna - Page 3 W-h97)
Corrections has not been of an offense punishable confinement in he is not subject to the provisions
You next ask the folloving question:
Under section 2 of Eouse Bill No. 647, hov uuch credit can be given aa inuate with a one-year sentence?
Section 2 of Eouae Bill No. amends article 5118a. V.T.C.S., to read as follows:
in order to mcourage jail discipline, distinction uay be made in the term of prisoners so as to extend to all such as are orderly, industrious and obedient, comforts and privileges according to their deserts;.... &mutation time for good conduct, industry and obedience may be wanted inmates of each countv la11 bv the sheriff in charge. A deduction in. t&ae not exceed one (1) day for each day of the original sentence actually served may be made from the term or terms of sentences when no charge of misconduct has been sustained against the prisoner. This Act shall be applicable
judgment of~fouviction 18 s fine or jail or a combination and fine; provided, hovever, such deduction time shall not exceed one-third (l/3) of the original sentence as to fines and court costs assessed the judpent of conviction. A prieoaer under two (2) or uore cumulative sentences shall be alloued c-ration as If they vere all one sentence. For such sustained charge of uiaconduct in violation of any rule known the prisoner (including escape or attempt to escape) any part or all of the coamutatlon which have sccrued under this Act in favor of the prisoner to the daa said misconduct may be forfeited and taken away by sheriff.... No other time allowance or credits in addition to the commutation of time for good conduct herein provided for may be deducted frou the tens or terms of sentences. The sheriff shall keep or cause to be kept a conduct record card or ledger form and a calendar card on each inmate shoving all forfeitures of coseNtatlon and the reasons therefor.
l4r. Robert 0. Viteraa - Page 4 m-497)
The underlined portions indicate the changes msde by House Bill No. 647 this article which otherwise is virtually unchanged since adopted by the Fifty-fourth Legislature in 1955. The major changes the time l llowabls for good conduct and llmlt forfeiture of cmtation to that accrued under thlr act.
The legislature also carried over the provision originally enacted in 1955 which states: “No other time allowance or credits addition to the commutation of time for good conduct herein provided for may be deducted from the term or terms of sentences.” See Acts - 1955. 54th Leg., ch. 461. at 1182.
At first, 5118a, V.T.C.S., would seem to limit the total credit which could be deducted from a one-year sentence to six months (or one (1) day for each day of the original sentence actually served). Flowever, this was clearly not the intent the Sixty-seventh Legislature.
Eouse Bill No. added a totally new provision to article of the Code of Criminal Procedure which provides 8s follows:
For each day of manual labor, in addition any other credits allowed by law, a prisoner entitled to have one day deducted from each sentence he is serving. The deduction authorized this Act, when combined with the deduction reauired bv Article 42.10, Code of Criminal Procedure, -1965, may not exceed two-thirds (2/3) of the sentence.
Sec. 1, subsec. 6.
The first this section shows the legislsture’s intention to provide for cmtatlon at the rate of one dsy for each day of manual labor In addition to other credits allowed by law, k.
those allowed by article 5118a. The courts will, If possible, give effect to all sections of a single statute. Threshing Machine Company v. Eowth. 293 S.W. 800 (Tex. 1927). We should attempt to harmonize and alve effect the addition to article 43.10 as well as amen&ent to article 5118a.
When the limitation set forth in article 5118a is read context of both acts, it becomes clear this was intended to be a limitation on the authority the sheriff to reward an Inmate for “good conduct, industry and obedience” by commuting up to “one (1) day for each day of the original actually served... when no charge of misconduct has been sustained against the prisoner.” The deductions provided for in article 43.10 have nothing to do with either the “good conduct” inmate or the authority *5 (MU-497) Hr. Robert 0. Vlterna -‘Page 5
sheriff. A prisoner becomes automatically “entitled” to these credits as a sort of compensation for “each day of manual lebor.”
The Sixty-seventh Legislature specifically llmlted the sheriff’s authority forfeit c-ration to “any part or all of cmtation which shall have accrued under this Act." @mphasls added).
If an Inmate received the maximum mount of good time credit article 5118a and worked each day allowable under incarceration, he would discharge three dsyr of his sentence for each day served. Thus. on a one-year sentence, an inmate could receive maximum of eight months credit. 43.10 provides
Article that “[tlhe deduction authorized by this 42.10 Act, when combined with the deductions required by article the Code of Criminal Procedure. 1965, may not exceed two-thirds (2/3) sentence.” does not seem to “require” any deductions. Eowever, it would not appear to be necessary to analyze legirlatlve intent behind this particular in order answer your specific queetion. Clearly the deduction authorized article 43.10 when combined with the deductions authorized by any other existing statutes would not exceed eight months on a one-year (or two-thirds of the sentence).
Your fourth question is as follows: 2 of House Bill
No. 647 [amending article 5118a. V.T.C.S.] apply to inmates going to be transferred to TDC?
Such an iomete Is technically confined by order of the court In the Texas Department of Corrections and is therefore subject to the 6181-l. V.T.C.S., regardlng good time. See Ex -- ;311$, S.W.Zd 905 (1977). paa:’ In addition, 5118a states
[t his Act be applicable judgment of conviction is a fine or jail sentence or a combination sentence, and fine.” It clearly, by its own terme, is not applicable to sentences for Incarceration in the Texas Department of Corrections.
Your fifth question is as follows:
Under section 3 [of Eouse Bill No. 647 which amends article 45.53. the Code of Criminal Procedure] since the act states fines are satisfied ‘at the rate of not less than $15.00 for each day, ’ can the sheriff or justice of the peace the credit given aga1na.t fines? *6 Mr. Robert 0. Vlterna - Page 6 (W-497) 45.53 of the Code of Crlmioal Procedure provides in part:
A defendant placed jail on account of failure to pay fine and coets can be discharged on habeas corpus by showing:
. . . . 2. That he has remained In jail a rufflclent length of time to satisfy the fine and costs, at the rate of not less than $15 for each day.
The sheriff has authority under article 5118a. V.T.C.S.. commute up to one-third of the total fine assessed against a defendant who is serving out a fine In the county jail. Rx parte Mlnjareo, 582 S.W.2d 105 (Tex. Grim. App. 1978). The court relied on the following language of the current version of article 5118a:
A deduction in time not to exceed one third (l/3) of the original sentence may be made from the term or term sentences.. . . This Act be applicable judgment of conviction a fine or jail or a combination of jail and fine.... ch. 371, at 943. The only change this
Acts 1963, 58th Leg., language relates to the amount of the deduction in time. Under this the sheriff’s action would in effect increase the credit provision, given against such a fine above the $15 allowed by article
SUMMARY 43.10, V.T.C.S.. The provisions the Code of Criminal Procedure apply to work performed by a misdemeanor during his incarceration in the county but only if such labor is used upon public improvements. These do not apply to convicted felons who are merely in county awaiting transfer to the Texas Department of Corrections. The maximum amount of credit which could be given to an inmate with a one-year sentence would be two-thirds sentence or eight months. The provisions 5118s. V.T.C.S., do not apply to inmates
who are merely awaiting transfer the Texas Department of Corrections. The sheriff could the credit given against a fine beyond the rate of $15.00 per day by commuting up to one-third total fine assessed sgainst
*. .
Hr. Robert 0. Viterna - Page 7 (Ml-497) in addition to the credit allowed under
defendant article 43.09. V.T.C.S.
v-.-&g Attorney General of Texas JORN W. FAINTER, JR.
First Assistant Attorney General
RICRARD E. GRAY III
Executive Assistant Attorney General
Prepared by Maury Rexamer
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Maury Hexamer
Patricia Rinojosa
Jim Hoellinger
p. 1783