THEATTORNEY GENERAL 

OF TEXAS 

WVIIA. WlLSON 

AlT0RNE-r GJSNERAI. 

AUSTIN ~.TEXAS 

September 14, 1960 

Honorable George E. Gilkerson Opinion No. W-933 

District Attorney 

Lubbock, Texas Re: Whether prosecution will lie 

under Article 95 of the Penal 

Code based on failure of a 

sheriff to turn in funds collected 

Dear Mr. Gilkerson: as a result of a capias pro fine? 

You have asked the question of whether prosecution will lie under Article 

95, Penal Code of Texas, based on the failure of a sheriff to turn in funds 

collected as a result of a capias pro fine, under the following fact situation: 

"On or about December 6, 1957, Gonzalo Rojas was arrested by 

J. T. Herrington, Sheriff of Crosby County, for violation of the 

liquor laws. Rojas pleaded guilty on December 7, 1957, and was 

fined $400 and costs and was sentenced to 30 days in jail. Rojas 

was freed when his attorney made Motion for New Trial. 

"On or about December 8, 1957, the Sheriff, ignoring, the Motion 

for New Trial, went out to Rojas ' house and arrested him and placed 

him in jail. Rojas stayed in jail until the 20th day of December. 

At that time, the Sheriff told Rojas that he would let him go if he 

would pay one-half of the fine. A friend of Rojas, Bernard.0 Gonzales, 

Came Ln on the 20th day of December and gave the Sheriff a check for 

$200 and the Sheriff released Rojas. 

"On January 27, 1958, the Clerk of the County Court of Crosby County 

issued a capias pro fine commanding the Sheriff to take the body of 

Gonzalo Rojas and place him in the County Jail of Crosby County until 

the fine and costs were paid. The Sheriff actually gave the capias 

pro fine to the Defendant Rojas as a receipt with the remarks thereon 

as follows: 'Came to hand the 27th day of January, 1958, and Executed 

the 3rd day of February, 1958, by collecting an additional $160 from 

Gonzalo Rojas plus $200 paid on December 23, 1957, leaving a balance 

of $84.05 still due.' The capias pro fine was signed by J. T. Herrington, Sheriff of Crosby County, Texas. 

"About a week later, Rojas paid $84.05 to Deputy Sheriff Alvie Ratheal 

which was the balance of his fine and costs. 

"The only money reported to the Commissioners Court or turned over to 

the County Treasurer was the $84.05 collected on or about the 10th of 

February, 1958, by Alvie Ratheal. 
Honorable George E. Gilkerson, Page 2 (w-933) 

"Sheriff J. T. Herrington co-mingled both the $200 payment 

and the $160 payment with his own money and spent it." 

Article 95 of the Texas Penal Code reads as follows: 

"If any officer of sny county, city or town, or any 

person employed by such officer, shall fradulently take, 

misapply, or convert to his own use any money, property 

or other thing of value belonging to such county, city or 

town, that may have come into his custody or possession by 

virtue of his office or employment, or shall secret the 

same with intent to take, misapply or convert it to his 

own use> or shall pay or deliver the same to any person 

knowing that he is not entitled to receive it, he shall be 

confined in the penitentiary not less than two nor more 

than ten years." (mpbasis added) 

Article 787, Code of Criminal Procedure reads as follows: 

"When a judgment has been rendered against a defendant 

for a pecuniary fine, if he is present, he shall be imprisoned in jail until discharged as provided by law. A certified copy of such judgment shall be sufficient to authorize 

imprisonment." 

Article 788, Code of Criminal Procedure reads as follows: 

"When a pecuniary fine has been adjudged against a 

defendant not present, a capias shall forthwith be issued 

for his arrest. The sheriff shall execute the same by 

placing the defendant in jail." 

Article 789, Code of Criminal Procedure reads as fdL~ows: 

"Where such capias issues, it shall state the rendition 

and amo?unt of the judgment and the amount unpaid thereon, and 

command the sheriff to take the defendant and place him in 

jail until the amount due upon such judgment and further costs 

of collecting the same are paid, or until the defendant is otherwise legally discharged." 

Article 1616, Revised Civil Statutes of Texas, states: 

"An account shall be kept with the sheriff charging him 

with all judgments, fines, forfeitures and penalties, payable 

to and rendered in any court of the county, the ccllection of 

which he is by law made chargeable, the sheriff may free himself from liability from such charge by: 
Honorable George E. Gilkerson, Page 3 W-933) 

(1) Producing the receipt of the County Treasurer showing 

the payment of such judgment, fine, forfeiture or penalty. 

(2) Showing to the satisfaction of the Commissioners' Court 

that the same cannot be collected, or that the same has been discharged by imprisonment or labor, or by escape, without his fault 

or neglect, and obtaining an order from said court allowing the 

same. " 

To convict under Article 95 the State must show: 

1. The Defendant is an "officer" and held office. 

Germany v. State, 109 Cr.R. 180, 3 S.W.2d 798. 

2. The funds were converted to his own use. (only 

slight evidence of f?au&lent intent required) Busby 

V. State, 51 Cr.R. 289, 103 S.W. 638. 

3. That the funds came into his custody by virtue of 

his office or employment. Hanna v. State, 138 Cr.R. 

183, 135 S.W.2d 105 followed in 138 C R 186, 135 

s.w.2d 106 and 138 Cr.R. 186, 187, 18;; i35 S.W.2d 107. 

In the case of Reed v. State 141 Cr.R. 503, 149 S.W.2d 119, a deputy 

sheriff was charged with violation of Article 95. The money was a fee earned 

by the sheriff for levy of execution upon certain properties. Accused bad 

received this money and not reported it and had spent it himself. This case 

clearly holds that a sheriff is an "officer" as contemplated by Article 95. 

The evidence of conversion in the present case is apparently the same as 

in the Reed case and is sufficient to support a conviction. 

The court held in the Reed case the funds came into Reed's custody by 

virtue of his office. In the present case the sheriff had a duty to collect 

and account for all fines. Article 1616, R.C.S. of Texas. 

In the case of Moore v. State, 53 Neb. 831, 75 N.W. 319, quoted with 

approval in Hartnett v. State, 56 Cr.Rp. 281, 119 S.W. 855 (1909), the court 

said: 

rr . . a where an officer receives money which he is not 

by law authorized to receive, such money is not received by 

him in his official capacity, . . -" 

The question here is whether the sheriff was authorized by law by virtue 

of a capias pro fine to receive the payment of the $160 in question when the 

payments were not made in strict compliance with the law. The point has been 
Honorable George E. Gilkerson, Page 4 NW-933) 

raised that the sheriff has no authority to make 

Moore case goes on to say: 

"Where a criminal statute applies only t 

illegal collections. The 

,o persons of a certain 

class, the doing of the acts which the statute forbids does not estop 

the defendant from denying that he belongs to the class which he is 

alone subjected to the penalties." 

The Moore case further states: 

"The cases cited as applying estoppels are for the most part 

cases where an officer charged by law with the duty of collecting 

taxes ?-as actually collected them and then refused to turn them 

over because illegally levied. There the general duty of collecting 

the money was imposed by law on the officer. The money was paid. 

The legality of the tax was a question solely between the public and 

the taxpayer, and the latter having voluntarily paid the tax, it was 

no affair of the collector whether he might have resisted the payment 

or not. The matter was not one of an estoppel. The issue was merely 

immaterial." 

In the present case the sheriff has a duty to collect fines and cannot raise 

the issue that the fines were improperly collected to defeat prosecution. This 

being true, prosecution will lie. 

Under the fact situation given prosecution will lie 

under Article 95 of the Penal Code based on failure 

of a sheriff to turn in funds collected as a result 

of a capias pro fine. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

By: ,-:v ,,,~ 

Cecil Cam&k. Jr. 

Assistant Attorney General 

APPROVED: 

OPINION COMMITlEE 

W. V. Geppert, Chairman 

Bob Shannon B, H. Timmins 

Tom Burr-us Riley Eugene Fletcher 

REVIENED FOR THE ATTORNEY 

GENERAL BY: 

Leonard Passmore