Honorable K. H. Dally ,Opinion No., O-1655

County Attorney Hutchinson County Re: (a) Would a sheriff. imprisoning a man Borger, Texas ..convicted of a misdemeanor and not paying his fine, be,guilty offalse imprisonment under Article. 1169, Penal Code of Texas, ifhe allowed the convict credit

‘only at the rate of one dollar ($1.00) per .da,yduring the period of his imprisonment? (b). Under Article 793, C.C~.P., must ,theconvict, ,if required by the sheriff,

, make some kind of showing that he is un-

‘,able to pay the fine and costs adjudged again~st him, ,or is the sheriff required to .allow. the conv:ict Three Dollars ($3.00) for each day ofhis imprisonment without any showing that he is unable to pay his fine costs ?
We are in receipt of**your** letter dated November 3, 1939, wherein you request the opinion ;ofthis Department upon the above-stated questions. Article 793, Code.of Criminal Procedure of Texas. as amended by the Acts of 1937, ,Forty-fifth Legislature, First Called Session, reads as follows : “When a~defendant,is convicted of a misdemeanor and his punishment is assessed at a‘pecunia~ry fine, ifhe is unable topay the.fine and costs adjudged against him, he may for such time as will satisfy thejudgment be put towork in the workhouse, or onthe county farm, or ,public improvements ofthe county, as provided in the succeeding Artic’le, or if there be no such.workhouse, f,arm ,or improvements, he shall be imprisoned injail for a sufficient length oftime to discharge the full amount of~fine,andcosts adjudged against him; rating such labor or imprisonment at Three Dollars ($3) for each day thereof; provided, however, that in all counties in this State containing a population **of** not less than twenty-fourHonorable K. H. Dally, Page 2

thousand one hundred eighty (24,180) no,rmore than twentyfour thousand two hundred (24,200); or in any counties containing apopulation of not less than forty-one thousand (41,000) and not more than forty-two thousand (42,000); and in all counties having a population ofnot less than forty-three thousand and thirty (43,030) and not more than forty-three thousand and fifty (43,050); and all counties having a population of not les,s than thirty-seven thousand two hundred eighty-six (37,286) and not ‘more than thirty-seven thousand two hundred ninety (37,290); and all counties having apopulation ofnot less than seven thousand one hundred (7,100) nor more than seven thousand one hundred fifty (7,150); and in counties containing a population ofnot less than thirty thousand seven hundred and seven (30,707) nor more than thirty thousand seven hundred and nine (30,709); and in counties containing a population ofnot less thantwenty-seven thousand five hundred forty-nine (27,549) nor more than twenty-seven thousand 

### five hundred fifty-one (27,551);and in counties containing a population ofnot less than nineteen thousand one hundred twenty-eight (19,128) nor more than nineteen thousand one hundred thirty (19,130); and in counties containing a population of not less than eighteen thousand eight hundred fifty-nine (18,859) nor more than eighteen thousand six hundred sixty-one (18,661); and in counties containing a population ofnot less than ten thousand and thirteen (10,013) nor more than tan thousand and fifteen (10,015). according to the last preceding Federal Census, when a defendant is convicted of a misdemeanor and his punishment is assessed at a pecuniary fine, ifhe is unable to pay the fine, ifhe is unable to pay the fine and costs adjudged against him, he may for such time as will satisfy thejudgment be put towork in the **workhouse,** or onthe county farm, or public improvements of the county, as provided in the succeeding Article, or ifthere be no such workhouse, farm ‘or improvements, he shall be imprisoned injail for a sufficient length oftime to discharge the full amount of fine and costs adjudged against him, rating such labor and ,imprisonment at not less than Ona Dollar ($1) per day nor more than Three Dollars ($3) per d,ay.

‘The Commissioners Court of each such county as defined by population brackets above in this State, at any regular or special term, shall, by order made and enter~ed in the minutes of said Court, determine the rate ofwages to be paid convicts in their respective counties for labor or imprisonment per day in accordance herewith.”Honorable K. H. Dally, Page ,j

The Court oftGrSm~:A~~~n.has’h~ld,~in an opinion delivered October 25, 1939, b~~gud@$K~u@;a* inthecase of Ex Part-e Gussie Ferguson, 132S.W. (2d) 4d8t’Urat~the~:imcadrne~~ toArticle 793, Code of Criminal Procedure, passed’:by th6Forty+f#th Legislature, supra, and Articles 794a, 794b, 794~ and ,794& Q#&? Of.CLriminal Procedure, which prescribe different 

### credits **fbr** 

### jMl,idrtice. in counties of different populations, are in contravention ofthe S&e **and** Fedderal’Constitutions and void.

**Judge**Kreugnr, in’htlr~&rtii@nire&gnized the right ofthe relator to be given credit under fhe gekeral, &w ,inaffect,at the **time** ofthe pass.age ofthe present Article 793,,wbfeh’ill+nved T,hrire Dollars per day on fine and costs, thereby eliminating the p@$&t~n brackets.

H&.chtn&m f@nnty. b#:.a,p@~tioa of fifteen thousand eight hundred and forty-eight, accbrding’t;o~a Jast preceding Federal Census, and does not come within any ofthe **p&it&Map** brackets set out inArticle 793, or any of the other abo.verment’ioned arficles. .therefiqr; the general rate of Three Dollars per day has alw~ays:.bt~n~:applica~~ to Hutchinson County as prescribed by **ArticJe** 793,. **Hutctl$~~@t** OeUaty is, therefore. not affected by the opinion of Judge K,reuger~,drDo?r&:ln.,the Ex,Paite Fe.rguson case.

Article 920 **dihe ’** **Cd&Bf** Crua&xal Racedtire of Texas reads as follows:

**“ A**  defendant placed~ia~~,~~~On

### :acco&of fatlure to pay the fine and cpsts can be d~k&s&ted @nh&&as forpus by showing:

-‘*l. That he is f.~),,p@b;ti Pay the 

### tiyidnd costs, and

**“ 2.**  That .lushaa remsiiUk& injUi ~a: suffietent length of time to satiafy~the fine ,and.:cobta..at~,the~~rata ofthree dollars for each day.

‘But **the defendaRt**  &a$l;‘tn ,no,~car(*z,udei this,article, be discharged ~unttl,he’haa,.~bb,$n ~&pris~oned-at least ten days; and thejustice ofthe peace, may~d$a&arge:~the defendant.upon his showiqthe same **cau86,** by app&ation ta such justice; and when such~application is gti~atittid; ‘thejustice &hall note the same onhis d~ocket,’
The 

### CaurtofCiimtasl~~lls h&s recognized a distinction between the credit k, beaDowed #far~serv#e -tnjaid;eer the two preceding statutes:. Article 793. supra. appltea’ti the~,satisfacflon ofjudgment in misdemeanar cases in ceurts 

### Q&e@ tbknrttstic~ c-t% f%&Ex Parte Fernandes, **57**S.W..(2d) 578; Ex Parte McLaugl&in, 6Q&W..@d) 78b.Honorable K. H. Dally, Page 4 . .-

In them Fernandez case, the relator, Fernandez, was convicted in the District Court,of Nueces County, Texas, of a’misdemeanor and his punishment assessed at a fine of $50.00 and costs~, amounting to $16.00. Presiding Judge Morrow inthis case wrote thenfollowing: i

“The chapter inwhich Article 920. supra, appears, is one having reference to ajudgment of conviction in a c:riminal action before ajustice ofthe peace. From what has been said it is apparent that the statutory enactments make a distinction onthe subject. at hand with reference to,the conviction of a misdemeanor before thejustice of the peace and the conviction of amisdemeanor in courts ofhigher jurisdiction. The reason for the distinction may be only amatter ofconjecture. Since the statutory direction was definite in its terms, the duty ofthe court to apply it as wr.itten is,mandatory. However, it **may** be said that thejustice courts are limited by the Constitution (Art. 5,Sec. 19) in criminal matters to afinenot,.exceeding $200.00. whilesunder Article 5, Section 16, other courts are given jurisdiction in misdemeanors of much higher grade and with penalties far Morse severe.”
In opinion No. 0- 1015by Assistant Attorney General Benjamin Woodall, directed to Honorable Tom Seay, County Attorney, Potter County, Amarillo, Texas, appears the following language:

“Inarriving at the proper credit to be allowed for service injail under a conviction in thejustice court, we must observe the.provisions ofArticle 920, Code of Criminal Procedure, supra, that ‘the def~endant shall, in no case, under this article, be discharged until he has been imprisoned ,atleast ten days;’
Yt is, therefore, our opinion that a prisoner convicted inthejustice court, when his total fine and costs is a,sum under Thirty Dollars ($30.00) should receive credit for only one-tenth ofthe total amount for each day he served ‘

.. . ?
In the McLaughlin case, 60S.W.(2d) 786, the relator was convicted in the corporation court of El Paso, Texas, and,hi,sfine assessed at Thirty Dollars ($30.00). Inthat case, itwas held that Article 793was applicable, and that Article 920, alone was applicable to convictions before thejustice ofthe peace.

From the holdings in the Fe,rnandez case and~the McLaughlin case, and the recent opinion delivered by **Judge** Kreuger inthe Ex ParteHonorable K. H. Dally, Page 5

Ferguson case, it is apparent that aprisoner is entitled to Three Dollars ($3.00) per day for service injail under a conviction of a misdemeanor in any court. The only difference in the applications of Articles 793 and 920 between thejustice court and other court convictions is that when aprisoner is convicted-in ajustice court, and serves his time injail, “he shall; inno case, be discharged until he has been imprisoned at least ten days.”

In light ofthe for,egoing discussion, we now come to consider **your** first question.

lows : The Constitution of Texas, Article I, Section 19,reads as fol-

“No citizen 

### ofthis state shall be deprived oflife, liberty and property, privileges or immunities, or in any manner disfranchised, except by the~due course ofthe laws ofthe land.”
Article 1169 ofthe Penal Code of Texas, reads as follows:
“False imprisonment is the wilful detention of another against his consent and where it is not expressly authorized by law, whether such detention be effected by an assault, by actual violence tothe person, by threats or by any other means which restrains the party so detained from removing from one place to another as he may see proper.”
We quote from 19Tex. Juris 560, as follows:
“The commonest suit for false imprisonment is one brought against the sheriff or other officer ofthe law, and the most frequent justification raised is that the defendant acted in obedience to legal process which he was bound to obey. Imprisonment by an officer under awarrant, fair and regular on its face, issued by legal authority, is not a false imprisonment, but a legal imprisonment, and no cause of action for damages rises against the officer for lawfully executing the writ. If, however, the imprisonment isunder awarrant which is palpably illegal, or issued without the authority of law, it constitutes a trespass towhich the officer will be liable in damages.”
Article 793, Code of Criminal Procedure, as itnow reads, and Article 920, ofthe Code of Criminal Procedure, expressly allow a prisoner Three Dollars per day on fine and cost, for each day ofhis imprisonment. We know ofno valid statute which allows to a prisoner convicted of a misdemeanor Andy assessed a pecuniary fine the sum of one dol-Honorable K. H. Dally, Page 6

lar credit onhis fine and costs for each day he is held injail because of his inability to pay his fine and costs in **money.**

There is a long line of decisions which hold that when a prisoner has remained injail for the time required by law to satisfy the amount of his fine and costs, he is entitled to his release, and that awrit ofhabeas corpus lies toprocure the discharge of a defendant who has satisfied his fine and costs. Ex Parte Hill, 15SW. (2d) 14; Ex Parts Clayton, 103S.W. 630; Ex Parte Woodroe. 101S.W. 226; Ex Parte Spears, 90S.W. 1011, and Ex Parte Reeves, 53SW. 1022 and others.

“A person is not liable for the detention of another in circumstances where the detention is authorized by law. The authority need not be expressed; it is sufficient if, from all the circumstances, the law would authorize the arrest. However, it is presumed until the contrary is shown that the imprisonment was unlawful; the prosecution need only prove the imprisonment, and it is for the defendants tojustify itby showing that itwas lawful.” (19 Tex. Juris. 550)

wrote : Judge Critz, inthe case ofMcBreath v. State, 12S.W.(2d) 118,

mCertainly it is not the law that an officer, or any one else, c.animprison a citizen ofthis state, without authority oflaw, and in violation ofhis plain, constitutional, and statutory guaranty, thereby forcing him to resort towrit ofhabeas corpus to gain his liberty, and then set up the remedy he has forced onthe party so illegally arrested or imprisoned. as a defense.?
We have set out above the law applicable toyour first question, but this Department cannot pass upon the guilt or innocence of an individual, this matter being within the province ofthe trial **courts** or juries ofthis State.
Your second question is answered by our opinion No. O-1563, a copy ofwhich we are enclosing herewith.

Trusting that the foregoing satisfactorily answers your inquiries, we remain
DBD:LM:da Yours very truly APPROVED DEC 9, 1939 ATTORNEYGENERALOF 

### TEXAS /s/ Gerald C. Mann ATTORNEY GENERAL OF TEXAS By /s/ D. Burle Daviss, Assistant 

### APPR~VED~PZNJONC~MMITTEEBYBWB,CHAIRMAN