Case Information
*1 AUSTIN OFFKE OF THE ATTORNEY GENERAL OF TEXAS Eonorabls I-:. P:. Beaslep
county Auditor
Collin Cocuty
1:cKinaey, Texas
Dear Sir:
ts asmxoa agninst .OO. He mkes nbout <O.OO addi- fine ena plan &I urity farm. Of the def andant for a pc?riOd Of x wish you v~0llia ans~m for c.t:ostions GLQ are these:
“1. 1s a cz~:+iag :rof!ne the pro;xlr jzoce- dure to follw~ uncier these Swt3 to commit the ::hould the dcfe:vltint defendant io the county farm?
~2, be civaz credit tho aaolwt he has p3ia on h:a Eke utia costs ror *2 Honorable R. E. Beasley, page 2
by subtracting this amount or its equivalent from the statutory ten day period3
"3. Should he be required to serve a total of ten days regardless of hou much money he had paid on his fine and cost?
"4. Should the amount of money that he had paid before the oaplae pro Pihe was issued be returned to him and then the defendant be requir- ed to serve out the entire fine and costs on the county farm?
"5. Is the arresting officer entitled to. hls fee in full from the part of money which had been paid or should he be entltled.to only one half of his fees, or should he be entitled to a pro rata part of his fees in full in pro- portion that the amount of money paid bears to the total fine and cost?
"6. Assuming the dePendant's fine and cost to be $15.00 ha Is entitled to a credit of $3.00 Par each day that he servts at the county farm.
Assuming that he goes to the county rarm and serves five days'and then wants to pay the bal- ance in cash and be releti:;sd fro5 the farm, just what amount should he be required to pay in oash in order to be released:;=
Article 787, Code of Criminal Proaedure or Texas, reads as Pollowa:
When a judgment has been rendered against a defendant for a pecuniary Pine, if he is pres- ent, he shall be lnprisoned in jail until dls- charged as provided by law. A certified copy of such judgment shall be sufficient to author- ize such impriaonment.w
Anlcle 788, Code of Criminal FroOedure of Texas, reads as Pollows:
Vhen a pcouniary fine has been adjudged against a defendant not present, a capias shall forthwith be insued for his arrest. The sherlff shall execute the same by placing,the defendant in jail.n
lionorable E. 1;. Beasley, Fage 3
Article 7C9, Code fo Criminal Procedure of Texas, reads as follows:
"';-here such copies issues, it shall state the rendition-and amount of thb ju?gaefit and the amount unp.aid thereon, and co.%.and the sher- lff to take the defenciant and place him in jail until the mount due upon such jud,qXnt and the further costs of collectin the s&2:8 are paid, or until the defendant is oth8Wise legally ah- charged."
Article 792, Code of Criminal 7rocedure of Texas, reads as follows: '_
‘Wion a defennant has beez conmitted to jail in default of the fine and costs adjudged against him, the further enforcement of such judgment shall be in accordance with the pro- visions of this Code."
Article 793, Code of Criminal procedure of Texas, reads as follows:
When a 48fendant in convicted OP a mlsde- meanor and his punishment is assessed at a pecun- iary fine, if he is unabl.3 ~to pay the fine and coats adjudged against tim, he may for such time as will satisfy the jufigment be put to won; in the workhouse, or on the cqunty Parm, or public improve-eilents oP the county, as providnd in the succeeding article, or if there be no such work- house, Pam or improvements, he shall be lmprison- ed in jail for a sufficient length of time to eis- charge the Pull arount of fine and costs adjudgcb against him; raticg such labor or ImprisonMnt at Three Collars ($5) for each day t!iersOf; . . . ."
Article 920, Code of Criminal Procedure,of Texas, reads as follows:
“A d8fenciant placed in jail on account of failure to pay t.he fine and costs cau be cils- chart;ed on habeas corpus by shor:lng:
"1. That he in too poor to pay the fine and costs, and
Honorable R. E. Beasley, Rage 4
"2. That he has remained in jail a sufti- cient lon@h of time to satisfy the fine ami costs, at the rate of three, dollars for each day.
"But the'defenaant shall, in no case undar this article, be discharged until he has been imprisoned at least ten days; and 3 justice of the peace may disCharg8 the defendant upon his shoviing the same cause, by applioation to such justice; and when such application is granted, the justioe shall note the same on his docket."
Article 1055, Code of Criminal procedure of Texas, reads as iollows:
"The county shall not-be liable to the of- ficer and vitness.having aosts in a misdemeanor case where defendant pays his fine and costs.
The county shall be liable for one-half of the rees ot the officers oP.the Court, when the de- fendant Pails to pay his fine and lays hia fine out in the county jail or discharges the same by means of viorking such fine out on the county roads or on any county project. hnd to py such half of costs, the County Clerk shall issue his warrant on the County Treasurer in favor of such officer to be paid out oi the Road and Bridge .Funa or other funds not otherwise appropriated.*
The court of Criminal Appeals of Texas has deri- nitely recognized that prisoners should be given credit on their tines and costs for service in jail or in the workhouse or other public Works. The court nlno definite- ly recognized the right of a convict to serve part of his time in jail and psy the balance in cash. See the case of Ex Part8 Rill, 15 J. Iu. (Zd) 14 (T8XaS Court or Criminal Appeals).
The Court of Criminal Appeals of Texas has re- COgniZ8d a distinction between the Credit to be allowed for service in jail under Article 793 and Article 920 of the Code of Criminal Procedure. Article 703, cup-a, ap- plies to the satisfaction of JudFsents in misdemeanor c3ses in courts other than Juaticc courts. Article 920, supra, applies alOn8 to convictions before jUStiCeS of the peace. 28e Rx Part9 Farcundez (Toxas Court of Crimin- al Appeals), 57 C. ;'I. (2d) 578 nnd Rx I'arte !IcI.aur,hlin (Texas Court of Criminal Appeols), 60 S. X, (Zd) 786.
IIonorable Ii. E. Besslcy, Page 5
?Y8 quote from opinion O-441 of this department ES r0iiom :
"It is the opinion of thin department that $3 00 per day is the proper rate for allowance .
or credit to be given prisoners who have beon convicted of misdemeanors for serving time in jail, or for working out their fines as provid- 8d by law. . . . It is the further opinion of this depsrt&ent that Article 920 of the Code of Criminal Frooedure of Texas applies only to Con- victions obtnined in justice courts but the same is mandatory as applied to courts. For justice example, A, B and C are all convicted in justice for misdemeanor. h’s fine and costs amount courts to $15,00; 5's fine and costs amount to z30.00 and C'S fine and coats ano.unt to $45.00. Under Article 920 Or the Cod8 of Criminal Procedure of TBXaS, although said article allov;s $3.00 per day for jail service, said article further pro- vides a nininum of ten days inqrisonriient. A must serve the minimum of ten days. B's fine and .
costs amount to $36.00 vihich divided by $3.00 would make ten days. C's fine and costs ariount to ;!45.00; he is allowed $3.00 per day; he must serve 15 days.n
!I'e quote frofi opinion MO. O-1015 Of this depart- ment, rendered September e, 193S, as follows: *It is our opinion that a pris- therefore,
oner convicted in the justice court, when his total fine and costs is a sum Under @O.CO should receive credit for only one-tenth of the total amount for each day he serves. To illustrate, '9 example rurtt!1er, A, and carry Err.
whOs8 fine and costs amount to $l5.00 should re- ceive credit for $1.50 for 8ECh day served in custody; should he elect to pay the balance of, his obligation in cash after five days in jail, he should be required to pay Y7.50 in cash."
Opinion :;o. O-1578 of this Department holds that a constable is entitled under nrticle 1.055, Cod8 of Criminal Yrocedure of Texas, to balf COSts on that part Of the time a defoUdant rczains in jail or works for the county when he so dischnr,:es part of the fine ond costs and paps ofl' a part, and that the s&s shall be properly prorated.
Honorable I!. 3. Beasley, Page 6
Opinions Iios. O-469 and O-765 of this depart- ment hold th.at where only a part of the fine anti costs are collected, that the nioney colleoted should go first to the payDent of the costs and the balance, if any, to the amount of the fine and that where thero is not enough collect& to pay all ol the costs, the Eoney should be prorated and that in such a case one officer haa no prior- ity over another. x’e quote from opinion X0. O-755 ak follows: -
*In view of the trial fee above provided, being a part of the costs, and by reason that the justice of the peace is paid by the county, It is our opinion that the $9.50 in question should be prorated on tho basis of 35.00 to the county attorney; $5.50 to the constable and $4.00 to the county, which figures approxlnate- ly sixty-four and a fraction aents on the dol- lar. The county would get its pro rata part of the payment .**.
Opinions Kos. O-469 and 755, supra, cite Article 949 cf:the’-Code of Crirainal Prooeclure of Texas, ahlch reads as f cllovis:~~
Qoney collected by an otficer open reoog- nlzance, bail baud8 and other obligations reoover- ed under auy provisions of this code, and all fines, forfeitures, judgments and jury tees, ool- lected under any provisions of this code, shall forthwith be paid over by the officers collect- ing the aame to the county treasurer of the prop- er county after first deducting therefrom the legal fees and consissions for collecting sasLe.w 7UnderscorLng ours)
You are, therefore, respectfully advise& as fol- lows : >
1. Your first quention is answered in the affir- mative.
2. Your second question is answered in the affir- rzative.
3. Your thlzd question In answered in the negative. 4. Your fourth question is answered in the nega- tire. In your particular Latter the total of dofendantls
Konorable k. E. Beasley, Page 7
fine and costs, includin(r. the costs of the cuGias pro fine and mileage to the county fara, is :!z23.00. The defendant should be allovted $2.30 credit on his fine and costs for each day he serves on the county fern. in this case. 5. In answer to your fifth question, is the it
opinion of this department that vrhere only a part of the fine and costs ase aollected, that the money collected should go first to the payment of the costs and the baL ante, if any, to the ariount of the fine, and that where there is not enough coll.ectcd to pay all the coots, the rboney collected should be prorated betu:een the arresting officer, the county attorney and the county, That no of- ficer has priority over another in such E;atter. For ex- a.%ple, if the fine end costs a&ouat to $23.00; as in your case; the fee of t.ha county attorney amounts to $5.00; the fee of the constable amounts to $13.00 end the trial fee amounts to $4.00; if tho defendant paid S6.00 in cash and the balance is worked out on the county farm the arrost- in6 officer would be entitled to $3.55 of the cash payz.ent, the county attorney.vJould be entitled to $1.36 of the cash payment and the county (as its portion of i.he trial fee) would be entitled to receive $1.09 of the cash paykent.
The a::resting officer and the county attorney v*ould also be entitled to receive payment from tbe county uuder Arti- cle itJ55, Code of Criminal Procedure of Texas, one half of the t-lance of their fees for the time the defendant work- ed. oul the balance of his fine and costs. Under the emm- ple quoted above the arresting officer would be entitled to receive from the county the sum of $4.72; the county attorney :ould be entitled to receive from the cbunty the sum of $1.22. The total sum received by the arresting of- ficer from both sources would be $3.27; the total susa re- ceived by the county attorney from both sources would be G3.18.
C. The amount due under your sixth question would be $7.50.
Trusting that this satisfectorily answers your inquiry and with best regards, we are truly yours
Very