**AUSTIN. TEXAS** 
April 4, 1950

Bon. Robert Callaway 0pZnion Ho. v-1031 DlstrLot AttolWy Borger, Texas Re:

Dear sirs

we refer to your reoent submit the folloting questions: conourTent or oonseautire credit for jell time in serving out peounlary rh33 aasessed in two or mora misdemeanoP convlotions 0 request in which you
"1

. WhereD, defendant, is convioted of two or moM misdemeanors at the sametime, and the penalty assessed for each is a peounlarg fine, andwhere Dis confined Lnjail in default of paynient of fines, is Dentitled to $3.00 per day on each fine, or musthe serve out the fLnes conseoutlvely? "2. If DIs oomioted on oonseautive days would th@ result be anydifferent. in view &fRx Parte Herrod, 175 8.H. (2d) 571" Wequote the following APtioles from Vemiorils Code of Criminal Procedure whfch em pertfnent to your inqutry 0 "783. As to Fine. - Whenthe defendant is only fined, the judgment shall be that the State of 9!exas reoover of the defendant, the amount of such fine and all costs of the prosecutiond andthat the defendant, if present abecommitted to jail until sucmh fine andcosts are paid; or if the defendant be not present, that a capias forthwith issue, commandingthe sheriff to arrest the defendant and commit him to jail until such fine and costs are pazd; also, that execution mayIssue against the property of such defendant for the amountof such fine and costs.Ron. Robert Cellaway, page 2 (v-1031)

"785T Discharging Judgment for Fin&. - When$he judgment against. a defendant Is for a fina and costs he shall bs discharged from the sY

. Whenthe amountthereof has been 

### "2. fully paid

. pyn remitted by the proper authorn3. Uhe; 

### hehas remained in custody f&r the time required by law to satisthe amountthereof. "787. Pay **OP** Jail. - Whenajudgment has been rendered agatnst a defendant for a peoimiary fine, if he is present, he shall be lmprl- ;o$ed in jail until discharged as provided by

. A certified copy of such judgment shall be sufrricient to authotize such 

### hprisoment. "793. Fine Discharged. - Whena defeiidant,ls c?nvFcted of amisdemeanor andhis pi@- ishment is assessed at a petunia iS untible to pay the fine atid,COQ z sf:$d;:dhe against him, he sag for such 

### timeas will~batisfy the judgment be put to work in the workhouse, or’ on thencounty .farm, or‘p,ubl%olmproveinents of the county, as @*ovided in the sucoeeding article; 

### orif there b%no such workhouse, farm or improvemsnts, he shell be imprisoned in jail for a sufficient length of time to discharge the full amount of fina and costs adjudged against him* rating such 

### labor or Imprisonment at Three (63.00) Dollars for each day thereof; provided, however, that the defendant maypay the pecuniary 

### fineassessed against hLmat any time while he is serving 8t work in the 

### workhouse,oron ths coo&y farm, or on the public Improvements of the county, or while he is serving his jell sentence, and in such Instances he shall be entitled to a credit of Three ($3.00) Dollars foi. each day op fraction of a day that he has served and he shall only bs required to pay the balance of the pecuniary fine assessed against him.”

“797* Discharge of Defendant, - Adefendant whohas remained in jail the len&th of time required by the judgment shall be discharged. me sheWrr shall return the copy of the judsment, 0~ths aapias undef.which the defendant-, Eon. Robert Callaway, page 3 (V-1031)

was imprisoned, to the proper court, stating howit was exe,cuted

.” In Ez a e Benti 41 Tex,Drlm. 201, 53s.u.688 (18991, it ia s,a e :

-

“This is an original proceeding in habeas corpus. The applicant alleges the t he la illegally restrained of hla liberty by the superintendent of the county oonvlof ianr. The facts a Feed upon showthathe was fined in twonils,emeanor cases. The trial and oonvic!i in the justice court was In assessed was a amounting to $57.43; $ich madethe total 

### offine andcosts $107.-

. In August following, applicant was tried in the county ooUFt, a@ convicted of a’misdeme anor. The fine assessed against hl.mwas $grt, and the costs7were $50~90, - the total being $100.90; and in addition, imprisonment in the county jail for 24 hours was assessed againsf, him. These were separate cases, end the judgment lo the last aase did not refer to the rorlter. Applicant, LnoPder to pay the fLne and costs in said two asses, aggregating $208.83, was placqc on the county conflat or poor farm 0s w00d q0mg. Re alleges, and it is agreed, that he has labormd on said term 324 days; that he was sick, and unable to work, 25 days; and that he did not do any labor on said 

### farmfor 47 

### days,-45 of mme being onSunday; that~ 396 days have elapsed since applicant has been on.sald convict raw. Applicant aontends that said, judgmnta were not oumuletive, and that he had been imprlroned dnthe first case 24 hours, andhad been hired on the county few a sufficient length of time to pay off the fine and costs in fhe first case, andthat ho was entitled to hlr discharge, lrbgatiless of the SLneandcosts in the subsequent case.

“The statute iwgulating oumlative sentenees refers only to cases in which imprisonment In the penitentiary of the oounty jail 1s a part of the punishment (Code Cr. Proo. art. 8&O); and It has been held this srtlcle refers as well to misdemeanors as to feloties (Ex parte cox, 29 Tex.App. 84, 14 8. W. 396; RXHon. Robert Callaway, page 4 ,(v-1031), -.

parte Betea (TexSr.App:) 40S.Y. 269). A reference to said article will ahowthat Lt has no reference to the DecuUary fines, but

to otdPuiativ& pnnibhnwnts. In such o8aes it whsheld, wheti the punishment we8imprisodment, that the ‘terms of punishment, whenthe senw,defendant was convicted in twoor mom cases, ran oonourrent with each other. We are not advised ~ofany case where the same rule washeld applicable to pecuntalrg fines. In such cases the fities were independent of each other, andthe payment of bne was not a satlsfaotion of the other.” (Lmphaslr added) In view of the foregoing it is our opinlbn that where a defendant is convicted. of two or more misdemeancz% at the sametime, and the penalty assessed is ~8pecuniary fins; 

### andthe defendant Is oon.Mwd in jail in default of payment of asid fines, he must serve out the time consecutively. Therule would be the sameIf the defendant Is convicted of two ormore misdemeanors on the sameday or on oonseoutive days.

Article 774, V.C.C.P., provides :

“Whenthe samedefendant has been convicted in two or more cases, andthe punishment assessed in eaoh case is confinement In the penitentiaryor the jail for a term of 

### imprisonment, judgment and sentence shall be pronounced Lneach base in the samemanner as if there had been but one aonviction, except that in ths discretion of the couzt, the judgmetitin the second and subsequent oonviotions mayeither be that the punishment shall begin whenthe judgment aui sentence in the preceding conviction has oeaaed to operate, or that the punishment shall run concurrently with the other case 

### orcases, and sentence andexecution shall be accordingly.* It is apparent that the above statute is appll

### oableonly to cases where the punishment assessed is 

### lmprisonment in the penitetitisry or jail and has no aplication whatever to cases where only pecuniary fines have been assessed. Ex pa&e Banks, supra. -,

/-- Ron. Robert Cellaway, page ,5 (V-1031)

He are in eooord with your'opiniaathattlm case of Rx p&pte’Rerrod is distinguishable from this case by the fact th t the oonvbd there was not Only assessed finebut alio ajili~senteaoe. SUMMARY If a defendant is convicted of two OP more misdemeanors at the sametime, the penalty assessed is .apectiary fine, and the’defendant is odnfined in jail in default of payment of such fines, he must serve out the time consecutively. only to cases is lmprlsonment ih the penitentiary or the j.eil, and the Walewould be the sameeven thou& such mlidemeanor oonvlctions were on aonsetutive days.

APPROVED

: Yolursvery truly, PRIGR ‘DAEIXL Attorney General J. C. Davis, Jr. county Arra~rs Division Charles D. lsthews Rxec,+ive Assistant BA:mw Assistant