Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

Hon. ZI. T. Burna

Coluity Attorney

wal.lcer county

Huntsville, Term

Dear s1rr

pt of your letter ted your Question ettar as r0110w8: es above shown. be answered the ort ioers heir ideB.* of Criminal Proaedure of 05, 40th Leglalature of Texas ty shall not be liable to the tneea hevlng ooata in a mie- em defendant paye hle tine oounty shall be liable for fees of the oftiosrs or the hen the defendant fail8 to pay hie fine and lays his fins out in the oounty jai~l or dieoharges the mm by mane of work- ing euoh ‘fine out on the aounty roads or on any aounty projeot. And to pay suah half of aoata, the County Cl.erk shall iaeum his wer- rant on the County Rreaeumr in favor of euah offioer to be paid out of the Road and Brid&s *2 Bon. I?. T. Burns, Page 2

Fund or other funds not otherwise eppro- priated."

Article 183, Code of Criminal Procedure of Texas reads as follows:

When the defendant is only fined the judgment shell be that the State of Texas recover of the defendant the amount of such fine end all costs of the proeeaution, and thst the defendant, if present, be oommitted to jail until such fine and costs are paid; or if the defendant be,not present, that a caples forthwith issue, commending the sheriff to arrest the defendant end commit hlm to jell until suah fine and coats are paid; also, thst execution may issue against the property of such defendant for the amount of such fine and costs.".

Article 784, Code of tirl.minalProoedure of Texas reeds as followsr

"If the punishment is aqv other than a fine, the judgment shall specify it, and order it enforced by the proper prccess.

It shall also adjudge the cost8 against the defendant, end order the oollection thereof as in other cases.n

Texas reads as follows;

"W%en a defendant is convicted of e misdemeanor and his punishment Is assessed et a pecunfary,fine, if he is unable to pay the fine and oosts adjudged against him, he may for such time as will satisfy the judg- ment be put to work in the workhouse, or on the oounty~farm, or public improvements of the county, as provided In the suoceedlng Axtlole, or If there be no such workhouse, fern or Improvements, he shall be imprlson- ed in jail for a sufrlclent length of time to discharge the full amount of fine end costs adjudged against him; ratin such labor or Imprisonment at Three Dollars Y $53) for each day thereof;....W

525 Texas, reeds es follows:

"Where the punishment assessed in a conviction for misdemeanor Is oonflnement in jell for more than one day, or where in such conviction the punishment Is assessed only et e pecuniary fine end the party so convicted Is unable to pay the fine end costs adjudged against him, those so convfctsd shell be required to do manual labor in accordance with the provisions of this article under the@llowing rules end regu- lations:

"1. Each cokmlssioners oourt may pro- vide for the erection of a workhouse end the establishment of a oounty farm In con- nection therewith for the purpose of utiliz- ing the labor of said parties so oonvlcted.

"2. Such terms end workhouses shell be under the control and menegsment of the commlseioners court, end said court may adopt such rules and reguletions not inconsistent with the laws es they deem necessary for the auocessrul management end operation of said institutions and for efrectively utilizing said labor.

"3. Suah overseers end guards may be employed under the authority of the ccmrmls- sloners court es mey be necessary to prevent escapes end to enforce such labor, end they shell be paid out of the county treasury such oompensetion as said oourt mey prescribe.

"4. Those so convicted shell be so guarded while et work es to prevent cxoepe.

"6. They shall be put to labor upon the public roads, bridges or other public works of the county when their labor oennot be utilized in the county workhouse or oounty farm.

"0. They shell be required to labor not less then eight nor more than ten hours each day, Sundays excepted. No person shell ever

be required to work for more than one year. "7. One who refuses to labor or Is otherwise refrectory or Insubordinate may be punished by solitary confinement on breed end weter or in such other manner es the commissioners court may direct. "8. 'When notet labor they may be con- fined in jail or the workhouse, es may be most convenient, or es the regulations of the commissioners court may prescribe. "9. A female shell in no oase be re- quired to do manual labor except in the workhouse.

"10. One who from age, disease, or other physical or mental disability is un- able to do manual labor shall not be requir- ed to work,but shell remein in jail until hls term of imprisonment is ended, or until the fine and costs adjudged against him are discharged according to law. His lnebilitp to do manual labor may be determined by a physiolen appointed for that purpose by the county judge or the ocmmissioners court, who shell be paid for such servloe suoh compeh- setion es said court may allow.

"11. One convicted of a m&sdemeenor whose punishment either in whole or in pert is imprisonment in jell may avoid manual labor by payment into the county treasury of one dollar for each day of the term of his imprisonment, and the receipt of the county treasurer to that effect shall be sufficient authority for the sheriff to de- tain him in jell without labor." Texas, reeds es follows:

"When, by the judgment of the court, a defendant Is to be imprisoned in jail, a certified copy of suoh judgment shell.ba suffioient authority for the sheriff to *5 527 place such defendent in jaiLgq

Texas, reads es follows:

"A ceplee Issued for the arrest end commitment of one convicted of a misdemeen- or, the penalty of which or any pert there- of is imprisonment In jail, shell recite the judgment end command the sheriff to place the defendant in jell. to remain the 1enRth of time therein fixedi end this writ sheil be surrloient to authorize the sheriff to place such defendant in jail." costs,

Vkquote from 11 Texas Jurisprudence, Chapter XIII, In Criminal Prosecti.ions, Seotion 9% page 396, es followsz

"Artlole 784 of the Coda of Criminal Procedure provides Chat &here the punish- . . . . . . -. . . _- ment is . . . . ctner tnen a rine tne Judgment shall...,edjudge the costs against the deren- dant, and order the oollection thereof as in other cese8.v In view of this provision, the State may recover the amount of the fine and costs in the manner provided for, which may include several methods. It wes intended by the use of the word ~collection' in the letter pert or Article 784, supre, not to restrict the colleotion of oosts to en execution only, but to permit collection as In other misde- meanor ceses. Under Articles 783 and 7134, above referred to, end in view of,bther-.provi- sions~in the uode.~of Criminal Procedure, the aer+3nd~t may be confined to jell for such time es will rssult,ln discharging the. costs although hia punishment is other then a fine. notwlth- stehdinp: the fact that the case may be deoided under the provisions of Article..799 of the Code of Criminal Prooedure. providing that, where the defendant is oonvicted f misdemeanor, and his punishment assessed et a &nt. h e iiey be put to work, es spsclfied. or confined t jell for a sufficient length of time to.disz charge the amount of tha fine end costs, retlng

528 Ron. R. T. Burns, Page 6

such labor or imprisohment et one dollar Inow three dolle ) P d y since thi

enactment should?8 c%i%d in view If the aforementioned artloles." (undersoor- ing and brackets ours)

The above quoted language from Texas Juris- prudence is supported by end is hbaed upon the ceaes of Ex Perte Polly, (Grim. Reports) 15 SW 2nd 16 end Ex Perte Spiller, 63 Grim. Rep. 93, 138 SW 1013.

Tim case of Ex Pert8 Polly, supre, Is perti- culerly In point. In this cese the defendant we8 con- victed of a misdemeanor in the County Court et Law 09 El Paso County end his punishment assessed et imprison- ment In the county jell for thirty days. The costs taxed against him amounted to $185.55. He we8 pleoed in jell on the 26th day of July end on the 30th day of.Dctpber sought release by habeas corpus proceedings before the judge of the court in which he wes convicted. From en order remending him the appellant prosecuted his appeal.

El Paso County had no workhouse, renn or pub- lic improvements es ocmtempleted by Artlclss793 end 794, 0. G. P. upon which to work the county convicts. It was contended by the appellant tn that oese that Article 993, c. c* P., related only to one whoso punishment hed been assessed et a pecuniary fine, and because appellant*8 punishment was assessed et oonfinement in jell said article had no epplioetion to his cese.

The Court of Criminel Appeals of Texas, speek- ing through Justioe Rewkins, in the Ex Perte~Polly oese, stated that Articles 783, 784, 794, 796 end 796, C. C. P. should be tnken Into consideration in connection with M.'ticle 793, C. C. F., end held that one convisted of a misdemeanor end sentenced to imprisonment may be kept for such further time beyond term of sentence as would discharge costs et the rate of $1.00 per day. The judgment Of the trial court wee affirmed.

At the time of the rendition of the decision in the Ex Pert8 Folly cese, supre, Article 793, C; C. P., ~g?ided that the credit allowed for jell service, labor,

should bs $1.00 per day. The rate now provided by Art&e 793, C. C. P. is $3.00 per deg. Artiole 920, C. C. P. is appl5.ceble to convictions of misdsmeanors in the Justice Courts.

We oall your attention to the raot that &Mole 784, Code or Criminal Prooedure of Texas, providee that the judgment ehall aleo adJudge the oosts against the derendant, as well us provide for punishment F Under thla artiole hie punishment may be by lmprieonment in jail. Thie judgment must eleo carry a judgment for the ooste against defendant. The ooete adjudged against the defendant in a miede- meanor case Includes the statutory fess and mileage of the ol’iioere ~oonnected with the oase end are payable primarily by the defendant. Artiole 1055, Code of Criminal Procedure, then provides that if the derendant rails to pay his fine and lays it lout in the oounty jail or dlaohargea the came by meana of working euoh rine out as provided therein that the oounty shall be liable for one-half of the fees of the offioers or the court and that euoh half of ooets shall be paid by warrant iertued by the County Clerk, eta.

We reel that Article 1055, G. G. P;, should be construed in oonneotion with Artlolea 783, 794, 785, 784, 793 and 798 of the Code or Criminal Prooedure.

It was undoubtedly the purpose or the Legisla- ture In passing H. B. SOS, of the 46th Legislature, amend- ing Artlole 1055, C. C. P. to aid orrioers having oosta in mlademeanor oases, where the defendant‘ rawy;;o;; pay his oonts and laid or worked the lane out.

artlole 1055, C. C. P., the oounty would not be liable for half costs and officers would get nothing where the defendant laid out or worked out the oosts aeeesaed against him in the judgment against him. Under the law the Vinew goes to the oounty and the orfioer does not have anypecuniary interest in it with the exoeptlon that aome orrioers reoeive e small statutory oomdseion ror oolleotlng same.

The term “fine”, teohfiioally speaking, means the peouniary amount assessed by the aourt against a defendant ror violation or law. A judgment in favor or the State against a defendant ior a fine also carries a JuUgment r0r the ooste. The term Vine” therefore, in oommon parlanoe, is often used to mean both fine and ooata, sin00 e judgment ror a rlne also carries a judgment for the oosts.

Ron. R. T. Burne , Page 6

We think it ie immaterial whet&r or not the judgment in a misdemeanor oase Is far rine and 00&s or ror Imprisonment and ooete. We t&Ink that the oounty 1s liable for half ooete-4n both inatanoee above to the orrioer havim oosts in a miadameanor oaee where the aererxlati rails to pay his fine end works or lays same out?.

You are, therarore, reapeotfully advleed that it la the opinion or thle department that your question should be enfmered in the affirmative and it is ^[80] an- 8wert3a.

Very truly yours ATTORNEY GENERAL OF TJXX+IS “Ukn. J. Fanning - Amletant