OFFICE OF THE ATTORNEY GENERAL. STATE OF nx*r JOHN CORNYN

July 7,200O

The Honorable Charles D. Penick Criminal District Attorney Bastrop County 804 Pecan Street Bastrop, Texas 78602 Opinion No. JC-0246
Re: Amount ofcredit for time served in acounty jail for failure to pay atine assessed for aClass C misdemeanor (RQ-0184-JC)
Dear Mr. Penick:
You have requested our opinion regarding the amount ofcredit that should be awarded to a convicted defendant for time served in acounty jail for failure to pay a tine assessed for aClass C misdemeanor. Pursuant to article 45.048 of the Code of Criminal Procedure, we conclude that a defendant should be credited at the rate ofnot less than $100 per day for each day orpart of aday served injail.
You indicate that, in accordance with article 43.09 ofthe Code of Criminal Procedure, the Bastrop County Jail is “crediting to all inmates convicted of acrime who fail to pay their fine an amount of only $50 per day. This policy includes those inmates convicted of Class C Misdemeanors.” Letter from Honorable Charles D. Penick, Bastrop County Criminal District Attorney, to Office ofthe Attorney General, Opinion Committee (Feb. 4,200O) (on tile with Opinion Committee). The issue you pose is whether article 43.09 is the statute that applies to persons convicted of Class C misdemeanors, in light of article 45.048 ofthe Code of Criminal Procedure, which is specifically applicable to persons convicted injustice and municipal courts. Chapter 43 of the Code of Criminal Procedure constitutes the general law applicable to “execution ofjudgment

” in criminal cases, Article 43.09(a) provides, in relevant part: When a defendant is convicted of a misdemeanor and his punishment isassessed atapecuniary tine orisconfined in ajail after conviction of a felony for which afine is imposed, ifhe is unable to pay the fine and costs adjudged against him, he may for such time as will satisfy thejudgment be put to work in the county jail industries program, in the workhouse, or on the county farm,~ or public improvements and maintenance projects ofthe county or apolitical subdivision located in whole orin part in the county, asprovided in the succeeding article; or if there be no such county jail industries program, workhouse, farm, or improvements and maintenanceThe Honorable Charles D. Penick Page 2 (JC-0246)

projects, heshall be confined injailfor asuf$cient length oftime to discharge thefull amount offine and costs adjudged against him; rating such confinement at $50 for each day and rating such labor at $50 for each day.
TEX. CODE GRIM. PROC. ANN. art. 43.09(a) (Vernon Supp. 2000) (emphasis added). In addition, article 43.09 confers broad discretion on the sentencing court to, for example, “grant an additional two days credit for each day served to any inmate participating in an approved work program. or arehabilitation, restitution, or education program,” and “to discharge all orpart ofthe fine or costs by performing community service” at the rate of $100 for each eight hours of service. Id. art. 43.09(d), (f), (k). Section (a) was last amended in 1993r and subsection(k) was amended in 1999 to increase the credit for eight hours of community service from $50 to $lOO.*
Your inquiry focuses on Class C misdemeanors. A Class C misdemeanor is one in which the maximum permissible punishment is a tine not to exceed $500, and it is not punishable by confinement. See TEX. PEN. CODE ANN. 5 12.23 (Vernon 1994). Justice courts have original jurisdiction in criminal cases in which the punishment is by a fine or other sanction that does not include confinement. See TEX. CODE GRIM. PROC. ANN. art. 4.11 (Vernon Supp. 2000). A municipal court has “exclusive original jurisdiction within the territorial limits ofthe municipality in all criminal cases” punishable by tine only, with the maximum tine not to exceed $500, or in certain cases, $2000. Id. art. 4.14. County courts do not have jurisdiction in any case inwhich the fine tobe imposed does not exceed $500. See id. art. 4.07. Thus, onlyjustice and municipal courts have jurisdiction of Class C misdemeanors. Chapter 45 ofthe Code ofCriminal Procedure deals exclusively with “justice and municipal courts.” Article 45.002 thereof declares: Criminal proceedings inthejustice andmunicipal courts shall be conducted in accordance with this chapter, including any other rules ofprocedure specifically made applicable tothoseproceedings by this chapter. If this chapter does not provide arule ofprocedure governing any aspect of acase, the justice orjudge shall apply the other general provisions of this code to the extent necessary to achieve the objectives ofthis chapter.
Id. art. 45.002 (emphasis added). Chapter 45was extensively rewritten in 1999, and many previous provisions were renumbered aswell as amended.r Former article 45.53 was redesignated as article

‘SeeAct ofMay 20, 1993,73dLeg.,RX, ch.578,§ 2, 1993Tex. Gen.Laws 2188,2189

‘SeeAct ofMay 30, 1999,76thLeg., R.S.,ch. 1545,$3,1999 Tex. Gen.Laws 5314

‘ See id. 5 6, at5315The Honorable Charles D. Penick - Page 3 (JC-0246)

45.04@ and amended to increase the credit fortime served from $15 per day to “not less than” $100 per day:
A defendant placed injail on account offailure topay the tine

and costs shall be discharged on habeas corpus by showing that the defendant: (1) is too poor to pay the fine and costs; or (2) has remained injail a sufficient length of time to satisfy the fine and costs, atthe rate ofnot less than $100 for each day orpart of aday ofjail time served.
TEX. CODE CFUM.PROC. ANN.art. 45.048 (Vernon Supp. 2000). Likewise, the credit injustice and municipal court for eight hours of community service was increased from $50 to $100. Id. art. 45.049. When a statute makes ageneral provision that is apparently applicable to all criminal cases and another statute makes adifferent provision for particular cases, the latter prevails insofar asthe particular case or class is concerned. SeeMagnolia Fruit &Produce Co., Inc. Y. Unicopy Corp. of Tex., 649 S.W.2d 794,797 (Tex. App.-Tyler 1983, writ dism’d); White Y.Sturns, 651 S.W.2d 372, 374 (Tex. App.-Austin 1983, writ ref dn.r.e.).
In the situation you pose, the amount ofcredit to be awarded forjail time served as aresult ofaproceeding in ajustice ormunicipal court isthe more specific provision. Because article 45.002 makes chapter 45 applicable toproceedings injustice and municipal courts tothe exclusion ofother provisions (particularly article 43.09), it is clear that article 45.048 is the statute to be applied to determine the amount of credit to be awarded to adefendant convicted of aClass C misdemeanor for time served in a county jail. Thus, in answer to your specific question, a defendant who is sentenced to county jail for failure to pay a tine assessed as a result of conviction for a Class C misdemeanor should be credited at arate ofnot less than $100 for each day or part of aday served injail.

‘

See id. 548, at 5323.The Honorable Charles D. Penick - Page 4 (JC-0246)

SUMMARY
A defendant who is sentenced to county jail for failure to pay a tine assessed as a result of conviction for a Class C misdemeanor should be credited at arate ofnot less than $100 for each day orpart of aday served injail.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General
CLARK KENT ERVIN Deputy Attorney General - General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee Rick Gilpin Assistant Attorney General -Opinion Committee