OFFKE OF THE ATTORNEY GENERAL OF TEXAS



# AUSTIN

Eonorabls I-:. P:. Beaslep county Auditor Collin Cocuty 1:cKinaey, Texas Dear Sir:

ts asmxoa agninst .OO. He mkes

nbout <O.OO addiplan &I fine ena urity farm. Of the def andant for a pc?riOd Of

c.t:ostions x wish you v~0llia ans~m for GLQ are these:

“1. 1s a cz~:+iag :rof!ne the pro;xlr jzocedure to follw~ uncier these Swt3 to commit the defendant io the county farm? ~2, ::hould 

# the

dcfe:vltint be civaz credit ror tho aaolwt he has p3ia on h:a Eke utia costsHonorable R. E. Beasley,page 2

by subtractingthis amount or its equivalent from the statutoryten day period3 "3. Shouldhe be required to serve a total of ten days regardlessof hou much money he had paid on his fine and cost? "4. Should the amount of money that he had paid before the oaplae pro Pihe was issued be returned to him and then the defendantbe required to serve out the entire fine and costs on the county farm? "5. Is the arrestingofficer entitled to. hls fee in full from the part of money which had been paid or should he be entltled.toonly one half of his fees, or shouldhe be entitled to a pro rata part of his fees in full in proportion that the amount of money paid bears to the total fine and cost? "6. Assuming the dePendant'sfine and cost to be $15.00 ha Is entitledto a credit of $3.00 Par each day that he servts at the county farm. Assuming that he goes to the county rarm and serves five days'andthen wants to pay the balance in cash and be releti:;sd fro5 the farm, just what amount shouldhe be requiredto pay in oash in order to be released:;= Article 787, Code of Criminal Proaedureor Texas, reads as Pollowa:

When a judgmenthas been renderedagainst a defendantfor a pecuniaryPine, if he is present, he shall be lnprisonedin jail until dlscharged as providedby law. A certifiedcopy of such judgment shall be sufficientto authorize such impriaonment.w Anlcle 788, Code of Criminal FroOedureof Texas, reads as Pollows:

Vhen a pcouniary fine has been adjudged against a defendant not present,a capias shall forthwithbe insued for his arrest. The sherlff shall execute the same by placing,thedefendant in jail.nlionorable E. 1;. Beasley,Fage 3

Article 7C9, Code fo CriminalProcedureof Texas, reads as follows:

"';-here such copies issues, it shall state the rendition-and

amount of thb ju?gaefit and the amount unp.aid

thereon,and co.%.and the sherlff to take the defenciant and place him in jail until the mount due upon such jud,qXntand the further costs of collectin the s&2:8 are paid, or until the defendant is oth8Wise legally ahcharged." Article 792, Code of Criminal 7rocedureof Texas, reads as follows: '_

‘Wion a defennanthas beez conmittedto jail in default of the fine and costs adjudged againsthim, the further enforcementof such judgment shall be in accordancewith the provisions of this Code." Article 793, Code of Criminalprocedure of Texas, reads as follows:

When a 48fendant in convictedOP a mlsdemeanor and his punishmentis assessed at a pecuniary fine, if he is unabl.3 ~topay the fine and coats adjudgedagainst tim, he may for such time as will satisfy the jufigment be put to won; in the workhouse,or on the cqunty Parm, or public improve-eilents

oP the county, as providndin the succeedingarticle, or if there be no such workhouse, Pam or improvements, he shall be lmprisoned in jail for a sufficientlength of time to eischarge the Pull arount of fine and costs adjudgcb againsthim; raticg such labor or ImprisonMnt at Three Collars ($5) for each day t!iersOf;

. . . ." Article 920, Code of Criminal Procedure,ofTexas, reads as follows:

“A d8fenciant

placed in jail on account of failure to pay t.he fine and costs cau be cilschart;ed

on habeas corpus by shor:lng: "1. That he in too poor to pay the fine and costs, andHonorable R. E. Beasley,Rage 4

"2. That he has remained in jail a sufticient lon@h of time to satisfythe fine ami costs, at the rate of three, dollars for each day.
"But the'defenaantshall, in no case undar this article,be dischargeduntil he has been imprisonedat least ten days; and 3 justiceof the peacemay disCharg8 the defendantupon his shoviing

the same cause, by applioationto such justice;and when such applicationis granted, the justioeshall note the same on his docket." Article 1055, Code of Criminalprocedureof Texas, reads as iollows:

"The county shall not-be liable to the officer and vitness.havingaosts in a misdemeanor case where defendantpays his fine and costs. The county shall be liable for one-half of the rees ot the officersoP.the Court,when the defendant Pails to pay his fine and lays hia fine out in the county jail or dischargesthe same by means of viorking such fine out on the county roads or on any county project. hnd to py such half of costs, the County Clerk shall issuehis warrant on the County Treasurer in favor of such officer to be paid out oi the Road and Bridge .Funaor other funds not otherwiseappropriated.* The court of CriminalAppeals of Texas has derinitely recognizedthat prisoners should be given credit on their tines and costs for service in jail or in the workhouseor other publicWorks. The court nlno definitely recognizedthe right of a convict to serve part of his time in jail and psy the balance in cash. See the case of Ex Part8 Rill, 15 J. Iu. (Zd) 14 (T8XaSCourt or Criminal Appeals).The Court of CriminalAppeals of Texas has reCOgniZ8da distinctionbetween the Credit to be allowed for service in jail under Article 793 and Article 920 of the Code of Criminal Procedure. Article 703, cup-a, applies to the satisfactionof JudFsents in misdemeanor c3ses in courts other than Juaticc courts. Article 920, supra, applies alOn8 to convictionsbefore jUStiCeSof the peace. 28e Rx Part9 Farcundez (ToxasCourt of Criminal Appeals), 57 C. ;'I. (2d) 578 nnd Rx I'arte !IcI.aur,hlin (TexasCourt of CriminalAppeols), 60 S. X, (Zd) 786.IIonorable

Ii. E. Besslcy, Page 5

?Y8 quote from opinion O-441 of this department ES r0iiom :

"It is the opinion of thin departmentthat $3 00 per day is the proper rate for allowance

. or credit to be given prisonerswho have beon convictedof misdemeanorsfor serving time in jail, or for working out their fines as provid8d by law.

. . . It is the further opinion of this depsrt&entthat Article 920 of the Code of CriminalFrooedureof Texas applies only to Convictionsobtnined in justice courts but the same is mandatory as applied to justice courts. For example,A, B and C are all convicted in justice
courts for misdemeanor.h’s fine and costs amount to $15,00;5's fine and costs amount to z30.00 and C'S fine and coats ano.unt to $45.00.Under Article 920 Or the Cod8 of CriminalProcedureof TBXaS, although said article allov;s $3.00 per day for jail service, said article further provides a nininum of ten days inqrisonriient. A must serve the minimum of ten days. B's fine and

. costs amount to $36.00vihich dividedby $3.00 would make ten days. C's fine and costs ariount to ;!45.00;

he is allowed $3.00per day; he must serve 15 days.n
!I'e quote frofi

opinion MO. O-1015 Of this department, renderedSeptembere, 193S, as follows:

*It is therefore, our opinion that a prisoner convictedin the justicecourt, when his total fine and costs is a sum Under @O.CO should receive credit for only one-tenthof the total amount for each day he serves. To illustrate, and carry Err. '9 example rurtt!1er, A, whOs8 fine and costs amount to $l5.00 should receive credit for $1.50 for 8ECh day served in custody; shouldhe elect to pay the balance of, his obligationin cash after five days in jail, he shouldbe required to pay Y7.50 in cash." Opinion :;o.

O-1578 of this Departmentholds that a constableis entitled under nrticle 1.055, Cod8 of Criminal Yrocedureof Texas, to balf COSts on that part Of the time a defoUdantrczains in jail or works for the countywhen he so dischnr,:es

part of the fine ond costs and paps ofl' a part, and that the s&s shall be properly prorated.HonorableI!. 3. Beasley,Page 6

OpinionsIios.

O-469 and O-765 of this department hold th.at

where only a part of the fine anti costs are collected,that the nioney colleoted should go first to the payDentof the costs and the balance, if any, to the amount of the fine and that where thero is not enough collect& to pay all ol the costs, the Eoney should be proratedand that in such a case one officerhaa no priority over another. x’e quote from opinionX0. O-755 ak follows: -

*In view of the trial fee above provided, being a part of the costs,and by reason that the justiceof the peace is paid by the county, It is our opinion that the $9.50 in question shouldbe proratedon tho basis of 35.00 to the countyattorney; $5.50 to the constableand $4.00 to the county,which figures approxlnately sixty-fourand a fraction aents on the dollar. The countywould get its pro rata part of the payment

.**. OpinionsKos. O-469 and 755, supra, citeArticle 949 cf:the’-Code

of Crirainal

Prooeclure

of Texas, ahlch reads as fcllovis:~~

Qoney collectedby an otficer open reoognlzance,bail baud8 and other obligationsreoovered underauy provisionsof this code, and all fines, forfeitures,judgmentsand jury tees, oollected under any provisionsof this code, shall forthwithbe paid over by the officers collecting the aame to the county treasurer of the proper county after first deductingtherefrom the legal fees and consissionsfor collectingsasLe.w 7UnderscorLngours)
You are, therefore,respectfullyadvise& as follows: >

1. Your first quention is answered in the affirmative. 2. Your second question is answered in the affirrzative. 3. Your thlzd question In answered in the negative.

4. Your fourth question is answered in the negatire. In your particularLatter the total of dofendantlsKonorablek. E. Beasley,Page 7

fine and costs, includin(r. the costs of the cuGias pro fine and mileage to the county fara, is :!z23.00. The defendant should be allovted

$2.30 credit on his fine and costs for each day he serves on the county fern. in this case. 5. In answer to your fifth question, it is the opinion of this departmentthat vrhere only a part of the fine and costs ase aollected,that the money collected should go first to the payment of the costs and the baL ante, if any, to the ariount of the fine, and that where there is not enough coll.ectcd to pay all the coots, the rboney collectedshould be proratedbetu:een the arresting officer,the county attorneyand the county, That no officer has priorityover another in such E;atter. For exa.%ple, if the fine end costs a&ouat to $23.00; as in your case; the fee of t.ha county attorney amounts to $5.00; the fee of the constableamounts to $13.00 end the trial fee amounts to $4.00; if tho defendantpaid S6.00 in cash and the balance is worked out on the county farm the arrostin6 officerwould be entitled to $3.55 of the cash payz.ent, the countyattorney.vJould be entitled to $1.36 of the cash paymentand the county (as its portion of i.he trial fee) would be entitledto receive $1.09 of the cash paykent. The a::resting

officerand the county attorneyv*ould also be entitledto receivepayment from tbe county uuder Article itJ55,

Code of CriminalProcedure of Texas, one half of the t-lance of their fees for the time the defendantworked. oul the balance of his fine and costs.Under the emmple quotedabove the arresting officerwould be entitled to receive from the county the sum of $4.72; the county attorney :ould be entitled to receive from the cbunty the sum of $1.22. The total sum receivedby the arrestingofficer from both sourceswould be $3.27; the total susareceived by the county attorney from both sourceswould be G3.18.
C. The amount due under your sixth questionwould be $7.50. Trusting that this satisfectorily answersyour inquiryand with best regards,we are Very truly yours