# THEATTORNEY GENERAL OF TEXAS

WVIIA. WlLSON AlT0RNE-r GJSNERAI. AUSTIN ~.TEXAS September 

### 14,1960

Honorable George E. Gilkerson Opinion No. 

### W-933 DistrictAttorney Lubbock,Texas Re: Whether prosecutionwill 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 capiaspro fine? You have asked the question of whether prosecutionwill lie underArticle 

### 95,Penal Code of Texas, based on the failure of a sheriff to turn in funds collectedas a result of a capiaspro fine, under the following fact situation:

"On or about December 

### 6, 1957,GonzaloRojas was arrestedby 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 attorneymade 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 releasedRojas. "On January 27, 

### 1958,the Clerk of the County Court of Crosby County issued a capiaspro fine commandingthe Sheriff to take the body of Gonzalo Rojas and place him in the County Jail of Crosby County until the fine and costswere paid. The Sheriff actually gave the capias pro fine to the DefendantRojas as a receipt with the remarks thereon as follows: 'Cameto hand the 27th day of January, 

### 1958,and Executed the 3rd day of February, 

### 1958,by collectingan additional $160 from Gonzalo Rojas plus $200 paid on December 23, 1957, leaving a balance of $84.05 still due.' The capiaspro fine was signedby J. T. Herrington, Sheriff of Crosby County, Texas. "About a week later,Rojas paid $84.05 to Deputy SheriffAlvie Ratheal which was the balance of his fine and costs. "The only money reported to the CommissionersCourt 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) "SheriffJ. T. Herrington co-mingledboth 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 employedby such officer, shall fradulentlytake, 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 possessionby virtue of his office or employment, or shall secret the same with intent to take, misapply or convert it to his own use> or shallpay or deliver the same to any person knowing that he is not entitled to receive it, he shallbe confined in the penitentiarynot less than two nor more than ten years." (mpbasis added) Article 787, Code of Criminal Procedure reads as follows: "When a judgmenthas been renderedagainst a defendant for a pecuniary fine, if he is present, he shallbe imprisoned in jail until dischargedas provided by law. A certified copy of such judgment shallbe sufficientto authorize imprisonment." Article 788, Code of Criminal Procedure reads as follows: "When a pecuniary fine has been adjudged against a defendantnot present, a capias shall forthwithbe issued for his arrest. The sheriff shall execute the sameby placing the defendant in jail." Article 789, Code of CriminalProcedure reads as fdL~ows: "Where such capias issues, it shall state the rendition and amo?untof the judgment and the amount unpaid thereon, and command the sheriffto take the defendant and place him in jail until the amount due upon such judgmentand further costs of collectingthe sameare paid, or until the defendant is otherwise legally discharged." Article 1616,Revised Civil Statutes of Texas, states: "An account shallbe kept with the sheriff charginghim with all judgments, fines, forfeituresand penalties,payable to and rendered in any court of the county,the ccllectionof which he is by law made chargeable,the sheriffmay free himself from liability from such chargeby: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 satisfactionof the Commissioners'Court that the same cannotbe collected, or that the same has been dischargedby imprisonmentor labor, or by escape, without his fault or neglect, and obtaining an order from said court allowing the same." To convictunder 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 custodyby 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;;i35S.W.2d107. In the case of Reed v. State 141 Cr.R. 503, 149 S.W.2d 119, a deputy sheriffwas chargedwith violation of Article 95. The money was a fee earned by the sheriff for levy of executionupon certainproperties. Accused bad received this money and not reported it and had spent it himself. This case clearlyholds that a sheriff is an "officer"as contemplatedby Article 95. The evidence of conversion in the present case is apparently the same as in the Reed case and is sufficientto supporta conviction. The court held in the Reed case the funds came intoReed's custodyby virtue of his office. In the present case the sheriffhad 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, quotedwith approval in Hartnett v. State, 56 Cr.Rp. 281, 119 S.W. 855 (1909), the court said:
rr

. . a where an officer receivesmoney which he is not by law authorized to receive, suchmoney is not receivedby him in his official capacity,
. . -" The question here is whether the sheriffwas authorizedby law by virtue of a capiaspro fine to receive the payment of the $160 in questionwhen the payments were not made in strict compliancewith the law. The point has beenHonorable GeorgeE. Gilkerson,Page 4 

### NW-933)

raised that the sheriffhas no authority to make Moore case goes on to say:

"Wherea criminal statuteapplies only tillegal collections. The

,opersons 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 classwhich he is alone subjected to the penalties." The Moore case further states: "The cases cited as applying estoppelsare for the most part caseswhere an officer chargedby 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 imposedby law on the officer. The money was paid. The legality of the tax was a question solelybetween the public and the taxpayer, and the latter having voluntarilypaid the tax, it was no affair of the collectorwhether he might have resisted the payment or not. The matter was not one of an estoppel. The issuewas merely immaterial." In the present case the sheriffhas a duty to collect fines and cannot raise the issue that the fineswere improperly collectedto defeatprosecution. This being true, prosecutionwill lie.

Under the fact situationgivenprosecutionwill lie under Article 

### 95 of the Penal Code based on failure of a sheriffto turn in funds collectedas a result of a capiaspro fine. Yours very truly, WILL WILSON Attorney General of Texas
By: ,-:v ,,,~ Cecil Cam&k. Jr. AssistantAttorney 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