Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GERALD C. MANN ATTORNEY GENERAL

Honorable Ralph Brook County Attorney Lubbook County Lubbook, Texas

Dear Sir:

Opinion No. 0=8452 Re: If a defendant is brought before, the court and enters a plea of guilty, or is tried by a jury and convicted, and the judgment is prepared and signed by the county judge, and the defendant after the signing of the judgment execute a bond to stay his judgment for the period or for a loss period than that set forth in a article 898, C.C.F. 7 also related questions under article 898, C.C.F.

This will acknowledge receipt of your letter requesting the opinion of this department upon the following three questions, which we quote from your letter as follows:

"First, if a defendant is brought before the Court and enters a plea of guilty, or is tried by a jury and convicted, and the judgment prepared and signed by the County Judge, and the defendant, after the signing of the judgment, execute a bond to stay his judgment for the period or for a loss period than that set forth in the Statute? "Second, if the defendant executes a bond to stay the judgment upon his conviction, either by plea of guilty or trial by jury, and is not surrendered

*2 Horn. Ralph Brock, page 2 back to the Court by the bondmen on the date on which his deferred judgment expires, does the Court have to take the defendant back at a later date, or are the bondmen liable for the amount of rine and costs? "A further question is, under the language of the bond, oan the defendant be surrendered even before the expiration of the time set forth in the bond and evade the payment of the fine and costs? It seems to me that the statutes and the lanreage of the bond bind the defendant and the bondmen to pay, and not allowing the defendant to serve his time out in jail."

Article 898 of Vernon's Annotated Code of Criminal Procedure, provides as follows: "On each verdiet of acquittal or conviction, the proper judgment shall be entered immediately, If acquitted the defendant shall be at onee disoherged from all further liability upon the oharge for which he was tried; provided that, in miede-meanor cases where there is returned a verdiet, or a plea of guilty is entered and the punishment assessed is by fine only, the Court may, on written request of the defendant and for good cause shown, defer judgment until some other day fixed by order of the Court; but in no event shall the judgment be deferred for a longer period of time than six (a) months. On expiration of the time fixed by the order of the Court, the Court or Judge thereof, shall enter judgment on the verdiet or plea and the same shall be executed as provided by Ghapter 4, Title 9, of the Code of Criminal Procedure of the State of Texas. Provided further, that the Court or Judge thereof, in the exercise of sound dissertation may permit the defendant where judgment is deferred, to remain at large on his own recognizanee, or may require him to enter into bond in a sum at least double the amount of the assessed fine and costs, conditioned that the defendant and sureties, jointly and ceyerally, will pay such fine and costs unless the defendant personally appears on the day set in the order and disoharges the judgment in the manner provided by Ghapter 4, Title 9 of the Code of Criminal

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Procedure of the State of Texas; and for the onforea- ment of any judgment entered, all writs, processes and remedies of the Code of Criminal Procedure are made applicable so far as necessary to carry out the provisions of this Article."

Article 786, Chapter 4, Title 9, Vernon's Annotated Code of Criminal Procedure, provides as follows:

"When the judgment against a defendant is for a fine and costs he shall be discharged from the same:

"1. Then the amount thereof has been fully paid.

"2. When remitted by the proper authority.

"3. When he has remained in custody for the time required by law to satisfy the amount thereof."

Article 795 of said Chapter and Title of Vernon's Annotated Code of Criminal Procedure reads as follows:

"When a defendant is convicted of a misdemeanor and his punishment is assessed at a pecuniary time, if he is unable to pay the fine and costs adjudged against him, he may for such time as will satisfy the judgment he put to work in the workhouse, or on the county farm, or public improvements of the county, as provided in the succeeding article, or if there be no such workhouse, farm or improvements, he shall be imprisoned in jail for a sufficient length of time to discharge the full amount of fine and costs adjudged against him; rating such labor or imprisonment at Three Dollars ($3.00) for each day thereof."

Prior to the amendment of Article 696 in 1931, said Article required that the proper judgment "be entered immediately." In a case such as presented by the facts submitted, where the punishment was merely a fine, the defendant, under Articles 788 and 795, either had to make immediate payment of the fine and costs, or be placed in jail immediately for a sufficient length of time to discharge the full amount of fine and costs at the rate of $5.00 per day. In counties where there was no

*4 Hion. Halch Brocx, page 4 "workhouse," "county farm" or "publio Improvement of the ountry," the various oounties were burdened with the oxpense of keeping and feeding such prisoner until he had atayed in jall for the number of days required to discharge the fine and costs at the rate rentioned.

The emergency clause of the Act amending Article 698 of the Code of Criminal Frocedure (42nd Logislature, page 89, Chapter 39, section 2) reads as follows: "100. 2. The fact that there is no provision of the law whereby a person guilty of misdemonor, and whose punishment has been assessed by fine only, may have an opportunity to pay the same, and that the present law works a hardship on many oounties of the state, creates an emerjency, . . ." (Underscoring ours)

It is our opinion, therefore, that the Logislature intended by said amendmont to give the oourt authority to give the defendant an opportunity to raise the money and pay the fine and costs if the oourt in its discretion saw fit to do so "on written request of the defendant and for good cause shown." said amendment should, therefore, be so construed as to give it the effect intended by the logislatore.

He are of the opinion that, the mere fact that the judgment was prepared and signed by the oourty judge, would not of itself preclude the judie from setting aside the judgment and accepting the defendant's bond and entering an order deferring the judgment for any period not to oxceed six months, provided the defendant makes his request and shows proper cause before the judgment has been executed and before the end of the term. It is a general rule that a judgment may be set aside at any time before the end of the term at which it was rendered, either upon the courts own motion of motion of a party, 25 Tex. Jur. p. 846. The ther "good cause" is shown is within the courts' discretion. Subjeet to the foregoing limitations, we answer your first question in the affirmative.

The last clause of Article 698, supra, reads as follows: ". . . and for the enforcement of any judgment entered, all writs, processes and remedies of the Code of Criminal Frocedure are made applicable so far as necessary to carry out the provisions of this Article."

The ception of the bill amending Article 698 (Acts 1931, 42nd Iegislature, page 89, Chapter 39) reade as follows:

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Hon. Ralph Brook, Page 3

"An act to anend article 698 of the Code of Griminal Proeedure of the State of Texas, providing that the proper jodgment be entered on verdicts; providing that in misdemonor eases where the verdiet or plea is guilty and the punisheant is by fine only, the Gourt or Judge may defer judgment; providing for the time and man ner, deferring judgment; providing for recognizance or bail for the defendant, and presoribing rem edies, and deolaring an emergency." (Underses ing ours.)

From the language of the atatute and the language of the caption, we are of the opinion that the "recognizance" and "bail" referred to in said article were used by the Legislatute in the same sense as those terms are used in the Code of Griminal Procedure generally. We conclude, therefore, that Artioles 424-440, of the Code of Criminal Procedure, dealing with the forfeiture of bail bonds and recognizances, and Artioles 888-889 of the Code of Criminal Procedure, dealing with the surrender of the principal, are applicable to the bonds and surative mentioned in Article 698 of Vernon's Annotated Cede of Criminal Procedure.

The condition of the bond as stated in Article 698 are "that the defendant and sur aities, jointly and severally, will pay wach fine and costs unless the defendant personally appears on the day set in the order and discharges the judgment in the manner provided by Chapter 4, Title 9 of the Code of Criminal Procedure of the State of Texas; . . ."

It follows, therefore, that if the defendant "is not surrendered back to the court by the bondamen on the date on which his deferred judgment expires," as stated in your second question, the obligation is forfeited, and the bondamen become liable as principal judgment debtors, Artioles 484-440, Vernon's Annotated Code of Criminal Procedure, providing for the forfeiture of bail bonds and recognizances, are applicable to the bond mentioned in Article 698.

In añëÑëf to your second question, you are respectfully advised that, under the facts stated, it is the opinion of this department that where the defendant does not personally

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Hon. Ralph Brook, Page 6

appear on the day set in the order, the bondmen becone liable as principal juggmeat debtore and may be proceeded against under irtiales 424-440 of Vernon's Annotated Code of Criminal Frocedure. It is the further opinion of this departmen that the court does not have "to take the dePendant back at a later date." The arrest or surrender of the prineipal after the forfeiture of the ball bond will not relieve the sureties. But pending final judgment, if the principal is apprehended, it is within the power of the court to remit, either in whole or in part, the penalty set aside in the bond. Lee v. State, (Tex. Crim. Rep.) 8 G. W. 277.

The statutes and the language of the bond, in our opinion, are not subject to the construction that the defendant and his bondmen must pay the fine and costs and that the defendant eannot etill serve out his time in jail. The only obligation resting on the bondmen is to see to it that the defendant "personally appears on the day set in the order." The defendant may then discharge the judgment in any of the several ways mentioned in Article 788, supra. One of the ways provided is to serve out his time in jail.

Article 288, Vernon's Annotated Code of Criminal Frocedure, provides as follows: " Those who have becone ball for the accused, or either of them, may at any time relieve themselves of their undertaking by surrendering the accused into the custody of the sheriff of the county where he is prosecuted."

It is our opinion that the bondamen may surrender the defendant before the expiration of the time set for in the bond if they follow the provisions of article 282-289, V. A. C. C. F., relating to the surrender of the principal.

In answer to your third question, you are respectfully advised that it is the opinion of this departmen, under the facts stated, that the bondamen, by following the procedure set out in Articles 282-289 of Vernon's Annotated Code of Criminal Irocedure, may surrender the defendant before

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Hon. Ralph Brook, Page 9

the expiration of the date set in the bond and thereby be discharged of any further liability on the bond.

We are enclosing herewith the form of bond submitted with your question.

Trusting that the foregoing answers your questions, we are

APPROVEID JUL 17, 1941

EPILN

ENCLOSURE

Very truly yours ATTORNEY GENERAL OF TEXAS