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### TEEAITORNEY GENERAL OFTEXAS

Honorable E. L. Hinson. Jr. CountyAuditor Polk County Livingston,Texas
Dear Sir: OpinionNo. O-4924 Re: Fees of office--Justice~ofthe, Peace--Constables--Article1055 C. C. P.--Prorationof costs and other related matters.
Your request for opinionupon the following stated questions:

"(1) Under Article 1055 of the Code of Criminal Procedure, ana according to your recent Opinion,which holds the county liable to each officer and witness having cost in a misdemeanor case for only one-half thereofwhere the defendent has satisfied the fine and~costs adjudged against him in full by labor in the'workhouse or public roads of county or serving same in jail, is the county to pay the Justice of the Peace or Constable or other officers their fee at the time of conviction or when the defendent has satisfied his fine in full by labor or laying same out in jail. "(2) Where a defendent pays part of his fine and works or lays the balance out in jail,dent the different fee officersget that part of cash payment by percentage' basis. Imean by this that the Fine, Fee, CountyAttorney, County Clerk, Sheriff or Constable shouldget their per cent of the part payment on the fine and then the unpaid part **will** be paid out of the Road & Bridge Fund as one-half fee. "(3) Where a defendent has been convicted and has been assessed a fine in the Justice of Peace Court, can'the Justice of the PeaCe turn him loose or discharge himwith the promise that the defendent will pay fine or should he turn him over to the Sheriff until fine ispaid or the defendentHonorable E. L. Blnson, Jr., page 2 O-4924

ispermitted to work out fine. Can the Justice of the Peace commit the defendent to work out his fine with the countywork house or on the countyRoads or should not the Justice of the Peace commit him to the eheriff and,then the sheriffwould see that he works out the fine or lays same out in jail." Article 1055,Vernon's Annotated Texas Code of Criminal Procedure,reads as follows:

"Theaounty shallnot be liable to the officer and witness having costs In a misdemeanor case where defendant pays his fine and costs. The county shallbe liable for one-half of the fees of the officers of the Court,when the defendant fails to pay his fine and lays his fine out in the county jail or discharges the sameby means ofworking such fine out on the county roads or on any county project. And to pay such half of costs, the County Clerk shall issue his warrant on the County Treasurer in favor of such officer to be paid out of the Road and Brlaae Fund or other fundsnot otherwiseapproprlat&l. 45th Leg., As amendedActs 1937,

p. 13231, 91. ch. 143, 488,~l ;Acts 1939, 46th

. Leg., p. Article 1052, Vernon'sAnnotated Texas Code of Criminal Procedure,provides for the payment of certain fees to the County Judge and Justice of the Peaceby the countyand reaas as follows:

"ThreeDollars shallbe paid by the county to the County Judge, or Judge of the Court at Law, and TvoDollars and fifty cents shall be paid by the county to the Justice of the Peace, for each criminal action tried. and finallydisposed of before him. Provlded;however, that inall counties having a population of 20,000 or less, the Justice of the Peace shall receive a trial fee of Three Dollars. Such Judge or Justice shallpresent to the Commissioners'Court of his county at a regular term thereof, a written account specifying each criminal action lnwhich he claims such fee, certifiedby such Judge or Justice to be correct, and filedwith the County Clerk. The Commissioners' Court shallapprove suah account for such amount as they find to be correct, and ordera draft to be issuedupon the County Treasurer in favor of suoh Judge or Justice for the amount so approved. Provided the Commissioners'Court shallHonorable E. L. Hinson, Jr., page 3 O-4924

not pay any account or trial fees in any case tried and inwhich an acquittal is had unless the State of Texas was represented in the trial of said cause by the CountyAttorney, or his assistant, CriminalDistrict Attorney OP his assistant, and the certificate of saidAttorney is attached to said account certifying to the fact ,thatsaid causewas tried, and the State of Texaswas represented,ana that in his judgmentthere was sufficient evidence in said cause to demand a trial of same. (AsamendedActs 1929, 41st Leg., p* 239, c~h.104, 8 1;Acts 1929, 155, ch. 55, LI10)" 41st Leg., 1st C. S., p9

The fees of the Justice of the Peace and County Judge for their services in trials of misdemeanor cases, both on pleas of guilty and contested cases, are payable by the county as provided by Article 1052,V.A.C.C.P., supra, OpinionNo. O-616 of this department holds, among other things that insofar as the Justice's and County Judge's fee are concerned the manner inwb,ichjudgments inmisdemeanor cases are satisfied is immaterialand that the Judge or Justice is entitled to be paid by the County the full fee as provided by Article 1052, V.A.C.C.P., for each criminal action tried and finallydisposed of by him, regardless of whether the fine and costs are ever collected or satisfied, In other words the right of the Judge or Justice to his fee under Article 1052, V.A.C.C.P.,does not depend upon the collection or satisfactionof the fine and costs, and is a fee not collected from the defendant upon convictionbut is strictlya fee to be paid the Judge or Justice by the county.

Trial fees are assessed under the provisions of Article 1074,Vernon's Annotated Texas Code of Criminal Procedure, which reads as follows:

"Ineach case of conviction in a county Court, or a County Court at Law, whether by a jury or by a Court, there shallbe taxed against the defendant or against all defendants,when several are held jointly,a trial fee of Five Dollars, the same to be collectedand paid over in the samemanner as in the case of a jury fee, and in the Justice Court the trial fee shallbe the sum of Four Dollars. iAl Acts 1929 41s'c ieg., 1st 6' g:,4z6'l$' z?' **s** amendedActs 1929 41st Leg 56,k. )" f . * f - Article 1065,Vernon's Annotated Texas Code of Criminal Procedure,provides certain enumerated fees for sheriffsHonorable E. L. Hinson, Jr., page 4 O-4924

and other peace officers (Includingconstables)who perform services inmisdemeanor cases, to be taxed against the defendant on tionviction.Article 1061 and Article 1068,Vernon's Annotated Texas Code of Criminal Procedure,provide, among other things, certain enumerated fees for county ettorneys to be taxed against the defendant on conviction.

Articles 783, 787, 788, 789, 793, 794, 795, 797 and 920,Vernon's Annotated Texas Code of Criminal Procedure, read as follows:

"Art. 781. (8671 (845) As to fine "When the defendant is only fined the judgment shallbe that the State of Texas recover of the defendant the amount of such fine and all costs of the prosecution,and that the defendant, ifpresent, be committed to jailuntil such fine and costs are paid; or if the defendant be not present, that a capias forthwith issue,'commandingthe sheriff to arrest the defendant and commit him to jailuntil such fine and costs are paid; also, that execution may issueagainst the property of such defendant for the amount of such fine and costs."
"Art. 787. (871) (849) Pay or jail "Whena judgmenthas been rendered against a defendant for a pecuniary fine, if he ispresent, he shallbe imprisoned in jailuntil discharged as providedby law. A certified copy of such judgment shallbe sufficient to,,authorize such imprisonment. (0. C. 694, 695.)
"Art. 788. (8721 (850) If defendant is absent "Whena pecuniary fine has been adjudged against a defendant not present, a capias shall forthwithbe issued for his arrest. The sheriff shall execute the same by placing the defendant in jail."
"Art. 789. (8771 (851) Capias shall recitewhat
"Where such capias issued, it shall state the rendition and amount of the judgmentand the amount unpaid thereon, and command the sheriff to take the defendant and place him in jailuntil the amount due upon such judgmentand the further costs of collecting the same are paid, or until the defendant is otherwise legallydischarged. (0. c. 700.)"Honorable g. L. Rlnson, Jr., page 5 0-4924

"Article791. (878) (856) Fine discharged "Whena defendant is convicted of a misdemeanor and his punishment isassessed at a pecuniary fine, if he is unable to pay the'fine and costs adjudged against him, he may for such time as will satisfy the judgmentbe put to work Fn theworkhouse, or on the county farm, or public improvementsof the county, as provided in the succeealng article, or Lf there be no suchworkhouse, farm or improvements,he shal,l be Imprisoned in jail for a sufficientlength of time to discharge the full amount of fine and costs adjudged against him; rating such labor or Imprisonmentat Three Dollars ($3.00) for each day thereof. As amended Acts 1927, 40th Leg., 1st C. S. p. 194 8 1; Acts 1934, 43rd Leg., 2nd t. S., p: 6 * g* $f, 33, 3 1."
"Art.794. To do manual labor "Wherethe punishment assessed ina convlction for misdemeanor is confinement in jail for more than one day, orwhere in such convFctFon the punlshment Isassessed only at a pecuniary flne and the party so convlcted is unable to pay the fine end costs adjudged against him, those so convicted shallbe required to do manual labor in accordancewith the provisions of this article under the followingrules and regulations: "1. Each commissioners courtmay provide for the erectlon of a workhouse and the establishment of e county farm In connection therewith for the purpose of utilizing the labor of saidpartles so convicted. "2

. Such farms and workhouses shellbe under the control and management of the commissioners court,end said court may adopt such rules and regulations not inconsistentwith the laws as they deem necessary for the successfulmanagement and operation of said institutionsend for effectively utlllsing said labor. "3

. Such overseersend guardsmay be employed under the authority of the commissionerscourt as may be necessary to ,preventescapes and to enforce such labor,and they shell be paid our of the county treasury such compensationas said court may prescribe.Honorable E. L. Rinson, Jr., page 6 O-4924

“4

. Those so convicted shallbe so guarded while at work as to prevent escape. “5

. They shallbe put to labor upon the public roads, bridges or otherpublicworks of the countywhen their labor cannot be utilized in the countyworkhouse or county farm. “6

. They shall be required to labor not less than eight nor more than ten hours each day, Sundays excepted. No person shall ever be required towork formore than one year. “7

. One who refuses to labor or is otherwise refractory or Insubordinatemay be punishedby solitaryconfinement on bread and water or in such othermanner as the commissionerscourt may direct. “8. When not at labor they may be confined in jail or theworkhouse, as may be most convenient, or as the regulations of the commissioners courtmay prescribe.
"9

. A female shall in no case be required to do manual labor except In the workhouse. "10. One who from age, disease, or otherphysical or mental disability is unable to do manual labor shall not be required to work, but shell remain in jail until his term of Imprisonment is ended, or until the fine and costs adjudged against him are discharged according to law. His inability to do manual labor may be determinedby a physicianappointed for that purpose by the county judge or the commissionerscourt,who shallbe paid for such service such compensationas said courtmay allow. "11. One convicted of a misdemeanorwhose punishment either Inwhole or in part is imprlsonment in jailmay avoid manual laborby payment Into the county treasury of one dollar for each day of the term of his imprisonment,and the receipt of the county treasurer to that effect shall be sufficientauthority for the sheriff to detain him in jailwithout labor."
"Art. 795. (879) (857)Authority for imorisonment "When,by the judgmentof the court, a defendantHonorable E. L. Hlnson, Jr,, page 7 O-4924

is to be imprisoned ln jail,T a certFfied copy of such judgment shallbe sufficientauthority for the sheriff to place suchdefendant In jail."
"Art.797. (881) (859) Discharge ofdefendant
"Adefendantwho has remained in jail the length of time required by the judgment shsllbe discharged. The sheriff shall return the copy of the judgment,or the capias underwhich the defendantwas imprisoned,to the proper court, statlng how itwas executed."
"Art. 920. (1015) (980)-Discharged from jail
"Adefendantplaced in jail on account of failure to pay the fine and costs can be discharged on habeas corpusby showing:
"1Q That he is too poor to pay the fine and costs,and "2

. That he has remained in jaila sufficient length of time to satisfy the fine and costs,at the rate of threedollars for each day.
"Butthe defendant shall, in no ease under this article,be discharged until he has been imprisoned et least ten days; and a justice of the peace may discharge the defendant upon his showing the same cause,by application to such justice; end when such application is granted, the justice shall note the same on his docket." The court of Crl.mLnal Appeals of Texas has defini?ely recognized that prisoners shouldbe given credit on their fines and costs for service in jailor in the workhouse or other public works. The court also definitely recognized the right of a convict to servepart of his tfme in jailand pay the balance in cash. See the case of Ex parteHill,15 S.W. (2d) 14 (Texas Court of CriminalAppeals)o

The Court of CriminalAppeals of Texas has recognized a distinctionbetween the credit to be allowed for service ih jail underArticle 793 and Article 920 of the Code oftCriminal Procedurea Article 793, supra,applies to the satisfactionof judgments inmisdemeanor cases In courts other than justice courts. Article 920, supra, applies alone to convictionsbefore justicesof the peace. See Ex parte Fernandez (Texas Court of CriminalAppeals), 57 S.W. (2d) 78 and Ex parte MC Laughlin (Texas Court of CriminalAppeals5
.60 S.W. (2d) 786.Honorable E. L. Hinson, Jr., page 8 O-4924

We quote from opinionNo. O-441 of thisdepartment as follows:
"It is the opinion of this department that $3.00per day la the proper rate for allowance or credit to be given prisonerswho have been convlctea of misdemeanors for serving time In jail, or for working out their fines as provided by law..... It is the further opinion of this department that Article 920 of the Code of Criminal Procedure of Texas applies only to convictions obtained In justice courtsbut the same Ismandatory as applied to justice courts. For example,A, B end C are all convicted in justicecourts for misdemeanor. A's fine and costs amount to $15.00; B's fine end costs amount to $30.00and C's fine and costs amount to $45.00. UnderArticle 920 of the Code of Criminal Procedure of Texas although said erticleallows $3.00 per day for $ail service, said article furtherprovides e minimum of ten dagsslmprisonment. A must serve the minimum of ten days. B's fine and costs amount to $30.00which divided by $3.00would make ten days. C's fine and costs amount to 845.00: he is allowed $1.00 aer day; he must serve‘15days." ,- _
We quote from opinionNo. O-1015 of rendered September 8, 1939, as follows:

"It is therefore our opinion that a er convicted in the justlce court,when this department,
prlsonhis total fine and costs is a sun! under $30.00 shouldreceive credit for only one-tenth of the total amount for eachday he serves. To illustrate,end carry Mr. Isexample further,A, whose fine-and costs amount to $15.00 should receive credit for $1.50 for each day-served in custody; should he elect to pay the balance of his obligation in cash after fivedays in jail, he shouldbe required to pay $7.50 in cash." Opinion No. o-1578 of thisDepartment holds that~ a constable Is entItled under Article 1055, Code of Criminal Procedure of Texas, to half costs on that part of the time a defendant remains in jail or works for the countywhen he so discharges pert of the fine end costs and pays off a part, and that the same shallbe properlyprorated.

OpinionsNos. 0-469 end O-755 of this department hold that where only a part of the fine end costs are collected,.

Honorable E. L. Hinson, Jr., page 9 O-4924

that the money collected shouldgo first to the payment of the costs and the balance, if any, to the amount of the fine and thatwhere there Is not enough collected to pay all of the costs, the money shouldbe prorated and that In such a case one officer had no priority over another. Wequote from opinion No. O-755 as follows:

"Inview 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 $8.50 lnquestion shouldbe prorated on the basis of $5.00 to the county attorney; $5-50 to the constableand $4.00 to the county,which figuresapproximately sixty-fourand a fraction cents on the dollar. The countywould get itsprorata part of the payment. OpinionsNos. O-469 and 755, supra, cite Article 949 of the Code of Criminal Procedure of Texas,which reads as follows:"Money collectedby an officerupon recognizance, ball bonds and other obligationsrecovered under any provisions of this code, and all fines, forfeitures, judgmentsand jury fees, collected under any provisions of this code, shall forthwith be paid over by the officers collectingthe same to the county treasurer of the proper county after firstdeducting therefrom the legal fees and commissions for collecting same." (Underscoringours)
We quote from opinionNo. O-1792 of this departmentas follows:"5

. In answer to your fifth question, it Is the opinion of this department that where only a part of the fine and costs are collected, that the money collected should go first tothe payment of the costs and the balance, if any, to the amount of the fine, and thatwhere there is not enough collected to pay all the costs, the money collected shouldbe proratedbetween the arresting officer, the county attorney and the county. That no offlcer has priority over another in suchmatter. For example, if the fine and costs amount to $23.00, as Inyour case, the fee of the county attorney amounts to $5.00; the fee of the constableamounts to $13.00and the trial fee amounts to $4.00; if the defendant paid $6.00 in cash and the balance isworked out on the county farm the arresting of-.

Honorable E. L. Rinson, Jr., page 10 0-4924

ficerwould be entitled to $3*55 of the cash payment? the county attorneywould he entitled to $1.36 of the cash payment and the county (as its portion of the trial fee)would be entitled to receive $1.09 of the cash payment. The arresting officer and the county attorneywould also be entitled to receive payment from the county under Article 1055, Code of Criminal Procedure of Texas, one-half of the balance of their fees for the tLme the defendantworked out the balance of his fine and costs. Under the example quoted above the arresting officerwould be entitled to receive from the county t'*esum of $4.72; the countyattorney would be entitled to receive from the county the SUJU of $1.82. The total sum receivedby the arresting officer from both sourceswould be $8.27; the total sum received by the county attorney from both sourceswould be $3.18.”
We answer your first question as follows:
It is our opinion that Article 1055, V.A.C.C.P., has no application to the feesdue the Justices of the Peace and County Judges for their services in trying and finallydlsposing of criminal cases inasmuchas they are entitled to full fees from the county under ArtLcle 1052,V.A.C.C.P. for each criminal action tried and finallydisposed of, irrespectiveof the collection or satisfaction of the judgmentsthey render.

It Is our oplnion that county attorneys, constables, sheriffsand clerks having costs in a misdemeanor case are not entitled to one-half fees under Article 1055,V.A.C.C.P., prior to satisfactionof the judgmentby jail service, county farm service,roadwork service OP other legal service on other county projects as contemplatedby Article 1055,V.A.C.C.P. However, Lf the judgment is satisfied in part onlyby such jail or other serviceunder saidArticle 1055 saLd officers would be entItled to half-costs on the portion of the judgment which is satisfied. See Limited Conference OpinionNo. O-1578 of this department, a copy of which is enclosed herewith.

We answer your secondquestion as follows:
It is our opinion under the facts stated inyour secondquestion that themoney collected shouldgo first to the payment of the costs and the balance, If any, to the payment of the fine, and that where there Isnot enough collected to pay all the costs, the money collected shouldbe prorated among the officershaving costs in the case and the county (for its trial fee). That no officerhas priority overHonorable E. L. Hinson, Jr., page 11 O-4924

another officer or over the county in suchproration. The officers having costs in such casewould also be entitled to half-costs from the county under saidArticle 1055, for the portions of time served in jail or other authorized service. In this connection see our quotation above In this opinion quoting from opinionNo. O-1792 of this departmentwhich thoroughly explains this matter lndetail.

Article 1055, supra,provides that such half-costs shallbe paid "out of theRoad and Bridge Fund or other funds not otherwiseappropriated".

We answeryour third question as follows: This department has repeatedly held that the Justice of the Peace has absolutelyno authority to release a defendant who is finally convicted and a fine assessed against him on the defendant'spromFse to pay later or on any other promise. We have likewise held repeatedly that ifa Justice were to attempt to make such order the Sheriff or Constable should ignorethe order and place the defendant In jail or on the county farm or other authorized countyproject for the satisfactionof the fine ana costs, unless the defendant paid the fine and costs. We have likewise repeatedly held that the Sheriff or Constable or otherarresting officerwould be in the position of unlawfullypermitting a prisoner to escape if they falled to do their duty by not collecting the fine and costs or by not taking the convicteddefendant in custody.

It is our further opinion that the judgmentof conviction ina misdemeanor casewill authorize the Sheriff to proceed in the statutorymethods of collection of the fine and costs and that no further orders from the JustIce of the Peace are necessary. In otherwords if the defendantdoes not pay the fine and costs adjudged against him the Sheriff should then place him in jail, or on the county farm or other authorized county pro,iTcC

to work out his fine and costs. It shouldbe borne In mind,however, that the county farm is under the supervision of the Commissioners'Court and that such court has the power to enact rules and regulations concerning the operation of such farm and the Sheriffmust, of course,be gulded by the wishes and desires of the Commissfoners'Court as to the number of and necessity for prisoners to be placed upon said county farm. It is likewise true that itwould be for the Commlssioners' Court to determine the necessity or advisability of working county prisoners on the county roads or other authorized countyprojects.

Trusting that this satLsfactorilyanswers your FnqUiry, we are. .

Honorable E. L. Rinson, Jr., page 12

Very truly 0-4924

yours ATTORNEYGENERAL OF TEXAS

By s/wm. J. Fanning Wm. J:'Fanning Assistant WJF:mp:wc Encl.

APPROVED OCT 24, 1942 s/Gerald C. Mann ATTORNEYGENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman