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 . Where D, defendant, is convioted of two 

or moM misdemeanors at the same time, and 

the penalty assessed for each is a peounlarg 

fine, and where D is confined Ln jail in default of paynient of fines, is D entitled to 

$3.00 per day on each fine, or must he serve 

out the fLnes conseoutlvely? 

"2. If D Is oomioted on oonseautive days 

would th@ result be any different. in view 

&f Rx Parte Herrod, 175 8.H. (2d) 571" 

We quote the following APtioles from Vemiorils 

Code of Criminal Procedure whfch em pertfnent to your 

inqutry 0 

"783. As to Fine. - When the 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 and that the defendant, if present 

abe committed to jail until sucmh fine and costs 

are paid; or if the defendant be not present, 

that a capias forthwith issue, commanding the 

sheriff to arrest the defendant and commit him 

to jail until such fine and costs are pazd; 

also, that execution may Issue against the 

property of such defendant for the amount of 

such fine and costs. 
Ron. Robert Cellaway, page 2 (v-1031) 

"785 T Discharging Judgment for Fin&. - 

When $he judgment against. a defendant Is for 

a fina and costs he shall bs discharged from 

the sY . When the amount thereof has been 

"2. 

fully paid . 

pyn remitted by the proper authorn3. Uhe; he has remained in custody f&r 

the time required by law to satisthe amount thereof. 

"787. Pay OP Jail. - When a judgment 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. - When a defeiidant ,ls c?nvFcted of a misdemeanor and his 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 time as will~batisfy the judgment be put to work in the workhouse, or’ on then county .farm, or ‘p,ubl%o lmproveinents of the county, as @*ovided in the 

sucoeeding article; or if 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 may pay the pecuniary fine assessed 

against hLm at any time while he is serving 8t 

work in the workhouse, or on 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, - A defendant who has 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 

how it was exe,cuted .” 

In Ez a e Benti 41 Tex,Drlm. 201, 53 s.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 show thathe was fined in 

two nils, !i emeanor cases. The trial and oonvicin the justice court was In 

assessed was a 

amounting to $57.43; 

$ich made the total of fine and costs $107.- 

. In August following, applicant was tried 

in the county ooUFt, a@ convicted of a’misdeme anor. The fine assessed against hl.m was $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, Ln oPder 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 farm for 

47 days, - 45 of mme being on Sunday; that~ 

396 days have elapsed since applicant has been 

on.sald convict raw. Applicant a ontends that 

said, judgmnta were not oumuletive, and that 

he had been imprlroned dn the first case 24 

hours, and had been hired on the county few 

a sufficient length of time to pay off the 

fine and costs in fhe first case, and that ho 

was entitled to hlr discharge, lrbgatiless of 

the SLne and costs 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; RX 
Hon. Robert Callaway, page 4 ,(v-1031), -. 

parte Betea (TexSr.App:) 40 S.Y. 269). A 

reference to said article will ahow that Lt 

has no reference to the DecuUary fines, but 

to otdPuiativ& pnnibhnwnts. In such o8aes it 

whs held, wheti the punishment we8 imprisodment, that the ‘terms of punishment, when the 

senw, defendant was convicted in two or mom 

cases, ran oonourrent with each other. We 

are not advised ~of any case where the same 

rule was held applicable to pecuntalrg fines. 

In such cases the fities were independent of 

each other, and the 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 same time, and the penalty assessed is ~8 pecuniary 

fins; and the defendant Is oon.Mwd in jail in default of 

payment of asid fines, he must serve out the time consecutively. The rule would be the same If the defendant Is 

convicted of two or more misdemeanors on the same day or 

on oonseoutive days. 

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

“When the same defendant has been convicted in two or more cases, and the punishment assessed in eaoh case is confinement In 

the penitentiaryor the jail for a term of 

imprisonment, judgment and sentence shall be 

pronounced Ln each base in the same manner as 

if there had been but one aonviction, except 

that in ths discretion of the couzt, the judgmetit in the second and subsequent oonviotions 

may either be that the punishment shall begin 

when the judgment aui sentence in the preceding conviction has oeaaed to operate, or that 

the punishment shall run concurrently with the 

other case or cases, and sentence and execution shall be accordingly.* 

It is apparent that the above statute is applloable only to cases where the punishment assessed is lmprisonment in the penitetitisry or jail and has n o 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 

fine but alio a jili~senteaoe. 

SUMMARY 

If a defendant is convicted of two OP 

more misdemeanors at the same time, the 

penalty assessed is .a pectiary 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 Wale would be the same even thou& such 

mlidemeanor o onvlc tions were on a onset utive 

days. 

APPROVED : 

Yolurs very truly, 

PRIGR ‘DAEIXL 

Attorney General 

J. C. Davis, Jr. 

county Arra~rs Division 

Charles D. lsthews 

Rxec,+ive Assistant 

BA :mw 

Assistant