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 of false imprisonment under Article. 1169, Penal Code of 

Texas, if he allowed the convict credit 

‘only at the rate of one dollar ($1.00) per 

.da,y during the period of his imprisonment? (b). Under Article 793, C.C~.P., 

must ,the convict, ,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 of his 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 ;of this 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, if he is unable to pay the. fine and costs adjudged against him, he may 

for such time as will satisfy the judgment be put to work in 

the workhouse, or on the county farm, or ,public improvements 

of the county, as provided in the succeeding Artic’le, or if 

there be no such.workhouse, f,arm ,or improvements, he shall 

be imprisoned in jail for a sufficient length of time to discharge the full amount of ~fine ,and costs 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-four 
Honorable K. H. Dally, Page 2 

thousand one hundred eighty (24,180) no,r more than twentyfour thousand two hundred (24,200); or in any counties containing a population 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 of not 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 a population of not less than seven thousand one hundred (7,100) 

nor more than seven thousand one hundred fifty (7,150); and 

in counties containing a population of not 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 of not less than twenty-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 of not 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 of not 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, if he is unable to pay the fine, if he is unable 

to pay the fine and costs adjudged against him, he may for 

such time as will satisfy the judgment be put to work in the 

workhouse, or on the county farm, or public improvements of 

the county, as provided in the succeeding Article, or if there 

be no such workhouse, farm ‘or improvements, he shall be imprisoned in jail for a sufficient length of time 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 of wages 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 oft GrSm~:A~~~n.has’h~ld,~in an opinion delivered October 25, 1939, b~~gud@$K~u@;a* inthecase of Ex Part-e Gussie 

Ferguson, 132 S.W. (2d) 4d8t’Urat~the~:imcadrne~~ to Article 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 of the relator 

to be given credit under fhe gekeral, &w ,in affect,at the time of the pass.age 

of the 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 of the p&it&Map brackets set out in Article 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 @n h&&as forpus by showing: 

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

“2. That .lus haa remsiiUk& in jUi ~a: suffietent length of 

time to satiafy~the fine ,and.:cobta..at~,the~~rata of three 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 the justice of the 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; ‘the justice &hall note the same 

on his d~ocket,’ 

The Caurt ofCiimtasl~~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 of judgment 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 in this case wrote then following: i 

“The chapter in which Article 920. supra, appears, is 

one having reference to a judgment of conviction in a c:riminal action before a justice of the peace. From what has been 

said it is apparent that the statutory enactments make a distinction on the subject. at hand with reference to ,the conviction 

of a misdemeanor before the justice of the peace and the conviction of a misdemeanor in courts of higher jurisdiction. The 

reason for the distinction may be only a matter of conjecture. 

Since the statutory direction was definite in its terms, the duty 

of the court to apply it as wr.itten is,mandatory. However, it 

may be said that the justice courts are limited by the Constitution (Art. 5, Sec. 19) in criminal matters to a finenot,.exceeding 

$200.00. whiles under 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- 1015 by Assistant Attorney General Benjamin 

Woodall, directed to Honorable Tom Seay, County Attorney, Potter County, 

Amarillo, Texas, appears the following language: 

“In arriving at the proper credit to be allowed for 

service in jail under a conviction in the justice court, we 

must observe the.provisions of Article 920, Code of Criminal Procedure, supra, that ‘the def~endant shall, in no case, 

under this article, be discharged until he has been imprisoned 

,at least ten days;’ 

Yt is, therefore, our opinion that a prisoner convicted 

in the justice court, when his total fine and costs is a, sum 

under Thirty Dollars ($30.00) should receive credit for only 

one-tenth of the total amount for each day he served ‘. . . ? 

In the McLaughlin case, 60 S.W.(2d) 786, the relator was convicted in the corporation court of El Paso, Texas, and, hi,s fine assessed 

at Thirty Dollars ($30.00). In that case, it was held that Article 793 was 

applicable, and that Article 920, alone was applicable to convictions before 

the justice of the peace. 

From the holdings in the Fe,rnandez case and~the McLaughlin 

case, and the recent opinion delivered by Judge Kreuger in the Ex Parte 
Honorable K. H. Dally, Page 5 

Ferguson case, it is apparent that a prisoner is entitled to Three Dollars 

($3.00) per day for service in jail under a conviction of a misdemeanor 

in any court. The only difference in the applications of Articles 793 and 920 

between the justice court and other court convictions is that when a prisoner 

is convicted-in a justice court, and serves his time in jail, “he shall; in no 

case, be discharged until he has been imprisoned at least ten days.” 

In light of the 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 of this state shall be deprived of life, liberty 

and property, privileges or immunities, or in any manner disfranchised, except by the~due course of the laws of the land.” 

Article 1169 of the 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 to the 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 19 Tex. Juris 560, as follows: 

“The commonest suit for false imprisonment is one brought 

against the sheriff or other officer of the 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 a warrant, 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 is under 

a warrant which is palpably illegal, or issued without the authority 

of law, it constitutes a trespass to which the officer will be liable 

in damages.” 

Article 793, Code of Criminal Procedure, as it now reads, 

and Article 920, of the Code of Criminal Procedure, expressly allow a 

prisoner Three Dollars per day on fine and cost, for each day of his imprisonment. We know of no 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 on his fine and costs for each day he is held in jail 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 in jail for the time required by law to satisfy the amount of 

his fine and costs, he is entitled to his release, and that a writ of habeas corpus 

lies to procure the discharge of a defendant who has satisfied his fine and 

costs. Ex Parte Hill, 15 SW. (2d) 14; Ex Parts Clayton, 103 S.W. 630; Ex 

Parte Woodroe. 101 S.W. 226; Ex Parte Spears, 90 S.W. 1011, and Ex Parte 

Reeves, 53 SW. 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 to justify it by showing that it was lawful.” (19 Tex. Juris. 550) 

wrote : 

Judge Critz, in the case of McBreath v. State, 12 S.W.(2d) 118, 

mCertainly it is not the law that an officer, or any one else, 

c.an imprison a citizen of this state, without authority of law, and 

in violation of his plain, constitutional, and statutory guaranty, 

thereby forcing him to resort to writ of habeas corpus to gain his 

liberty, and then set up the remedy he has forced on the party so 

illegally arrested or imprisoned. as a defense.? 

We have set out above the law applicable to your first question, 

but this Department cannot pass upon the guilt or innocence of an individual, 

this matter being within the province of the trial courts or juries of this 

State. 

Your second question is answered by our opinion No. O-1563, 

a copy of which 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