L . 

TEEAITORNEY GENERAL 

OFTEXAS 

Honorable E. L. Hinson. Jr. 

County Auditor 

Polk County 

Livingston, Texas 

Dear Sir: Opinion No. O-4924 

Re: Fees of office--Justice~of the, 

Peace--Constables--Article 1055 

C. C. P.--Proration of costs and 

other related matters. 

Your request for opinion upon 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 thereof where 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 officers get that part of cash 

payment by percentage' basis. I mean by this that 

the Fine, Fee, County Attorney, County Clerk, 

Sheriff or Constable should get 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 him with the promise that the 

defendent will pay fine or should he turn him over 

to the Sheriff until fine is paid or the defendent 
Honorable E. L. Blnson, Jr., page 2 O-4924 

is permitted to work out fine. Can the Justice of 

the Peace commit the defendent to work out his fine 

with the county work house or on the county Roads 

or should not the Justice of the Peace commit him 

to the eheriff and, then the sheriff would 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: 

"The aounty shall not be liable to the officer 

and witness having costs In a misdemeanor case 

where defendant pays his fine and costs. The county shall be 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 same by means of working 

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 funds not 

otherwise approprlat&l. 

45th Leg., 

As amended Acts 1937, 

p. 

13231,9 1. 

ch. 

143, 

488,~l ; Acts 1939, 46th . 

Leg., p. 

Article 1052, Vernon's Annotated Texas Code of Criminal Procedure, provides for the payment of certain fees to 

the County Judge and Justice of the Peace by the county and 

reaas as follows: 

"Three Dollars shall be paid by the county 

to the County Judge, or Judge of the Court at Law, 

and Tvo Dollars and fifty cents shall be paid by 

the county to the Justice of the Peace, for each 

criminal action tried. and finally disposed of before him. Provlded;however, that in all 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 shall present to 

the Commissioners' Court of his county at a regular term thereof, a written account specifying 

each criminal action ln which he claims such fee, 

certified by such Judge or Justice to be correct, 

and filed with the County Clerk. The Commissioners' Court shall approve suah account for such 

amount as they find to be correct, and order a 

draft to be issued upon the County Treasurer in 

favor of suoh Judge or Justice for the amount so 

approved. Provided the Commissioners' Court shall 
Honorable E. L. Hinson, Jr., page 3 O-4924 

not pay any account or trial fees in any case 

tried and in which an acquittal is had unless the 

State of Texas was represented in the trial of 

said cause by the County Attorney, or his assistant, Criminal District Attorney OP his assistant, 

and the certificate of said Attorney is attached 

to said account certifying to the fact ,that said 

cause was tried, and the State of Texas was represented, ana that in his judgment there was sufficient evidence in said cause to demand a trial of 

same. (As amended Acts 1929, 41st Leg., p* 239, 

c~h. 104, 8 1; Acts 1929, 

155, ch. 55, LI 10)" 

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, Opinion No. 

O-616 of this department holds, among other things that insofar as the Justice's and County Judge's fee are concerned the 

manner in wb,ich judgments in misdemeanor cases are satisfied 

is immaterial and 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 finally disposed 

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 satisfaction of the fine and 

costs, and is a fee not collected from the defendant upon conviction but is strictly a 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: 

"In each case of conviction in a county Court, 

or a County Court at Law, whether by a jury or by 

a Court, there shall be taxed against the defendant 

or against all defendants, when several are held 

jointly, a trial fee of Five Dollars, the same to 

be collected and paid over in the same manner as 

in the case of a jury fee, and in the Justice Court 

the trial fee shall be the sum of Four Dollars. 

iAl Acts 1929 41s'c ieg., 1st 6' g:,4z6'l$' z?' 

s amended Acts 1929 41st Leg 

56,k. )" f 

. * f - 

Article 1065, Vernon's Annotated Texas Code of Criminal Procedure, provides certain enumerated fees for sheriffs 
Honorable E. L. Hinson, Jr., page 4 O-4924 

and other peace officers (Including constables) who perform 

services in misdemeanor 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 

shall be that the State of Texas recover of the 

defendant the amount of such fine and all costs of 

the prosecution, and that the defendant, if present, 

be committed to jail until such fine and costs are 

paid; or if the defendant be not present, that a 

capias forthwith issue, 'commanding the sheriff to 

arrest the defendant and commit him to jail until 

such fine and costs are paid; also, that execution 

may issue against the property of such defendant 

for the amount of such fine and costs." 

"Art. 787. (871) (849) Pay or jail 

"When a judgment has been rendered against a 

defendant for a pecuniary fine, if he is present, 

he shall be imprisoned in jail until discharged 

as provided by law. A certified copy of such 

judgment shall be sufficient to,,authorize such 

imprisonment. (0. C. 694, 695.) 

"Art. 788. (8721 (850) If defendant is absent 

"When a pecuniary fine has been adjudged 

against a defendant not present, a capias shall 

forthwith be issued for his arrest. The sheriff 

shall execute the same by placing the defendant 

in jail." 

"Art. 789. (8771 (851) Capias shall recite what 

"Where such capias issued, it shall state the 

rendition and amount of the judgment and the amount 

unpaid thereon, and command the sheriff to take the 

defendant and place him in jail until the amount 

due upon such judgment and the further costs of 

collecting the same are paid, or until the defendant is otherwise legally discharged. (0. c. 700.)" 
Honorable g. L. Rlnson, Jr., page 5 0 -4924 

"Article 791. (878) (856) Fine discharged 

"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 and 

costs adjudged against him, he may for such time 

as will satisfy the judgment be put to work Fn 

the workhouse, or on the county farm, or public 

improvements of the county, as provided in the succeealng article, or Lf there be no such workhouse, 

farm or improvements, he shal,l 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 ($3.00) 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 

"Where the punishment assessed in a convlction for misdemeanor is confinement in jail for 

more than one day, or where in such convFctFon 

the punlshment Is assessed only at a pecuniary 

flne and the party so convlcted is unable to pay 

the fine end costs adjudged against him, those 

so convicted shall be required to do manual labor 

in accordance with the provisions of this article 

under the following rules and regulations: 

"1. Each commissioners court may 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 said partles so 

convicted. 

"2 . Such farms and workhouses shell be under 

the control and management of the commissioners 

court , end said court may adopt such rules and 

regulations not inconsistent with the laws as they 

deem necessary for the successful management and 

operation of said institutions end for effectively 

utlllsing said labor. 

"3 . Such overseers end guards may be employed 

under the authority of the commissioners court as 

may be necessary to ,prevent escapes and to enforce 

such labor, and they shell be paid our of the county 

treasury such compensation as said court may prescribe. 
Honorable E. L. Rinson, Jr., page 6 O-4924 

“4 . Those so convicted shall be so guarded 

while at work as to prevent escape. 

“5 . They shall be put to labor upon the public roads, bridges or other public works of the 

county when their labor cannot be utilized in the 

county workhouse 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 

to work for more than one year. 

“7 . One who refuses to labor or is otherwise 

refractory or Insubordinate may be punished by 

solitary confinement on bread and water or in such 

other manner as the commissioners court may direct. 

“8. When not at labor they may be confined 

in jail or the workhouse, as may be most convenient, or as the regulations of the commissioners 

court may 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 other physical 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 determined by a physician appointed for that purpose by the county 

judge or the commissioners court, who shall be 

paid for such service such compensation as said 

court may allow. 

"11. One convicted of a misdemeanor whose 

punishment either In whole or in part is imprlsonment in jail may avoid manual labor by 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 sufficient authority for the sheriff to detain 

him in jail without labor." 

"Art. 795. (879) (857) Authority for imorisonment 

"When, by the judgmentof the court, a defendant 
Honorable E. L. Hlnson, Jr,, page 7 O-4924 

is to be imprisoned ln jail,T a certFfied copy 

of such judgment shall be sufficient authority for 

the sheriff to place such defendant In jail." 

"Art. 797. (881) (859) Discharge of defendant 

"A defendant who has remained in jail the 

length of time required by the judgment shsll be 

discharged. The sheriff shall return the copy of 

the judgment, or the capias under which the defendant was imprisoned, to the proper court, statlng how it was executed." 

"Art. 920. (1015) (980) -Discharged from jail 

"A defendant placed in jail on account of 

failure to pay the fine and costs can be discharged on habeas corpus by showing: 

"1 Q That he is too poor to pay the fine and 

costs, and 

"2 . That he has remained in jail a sufficient length of time to satisfy the fine and 

costs, at the rate of three dollars for each day. 

"But the 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 should be given credit on their fines 

and costs for service in jail or in the workhouse or other public works. The court also definitely recognized the right of 

a convict to serve part of his tfme in jail and pay the balance 

in cash. See the case of Ex parte Hill,15 S.W. (2d) 14 (Texas 

Court of Criminal Appeals) o 

The Court of Criminal Appeals of Texas has recognized 

a distinction between the credit to be allowed for service ih 

jail under Article 793 and Article 920 of the Code oft Criminal 

Procedure a Article 793, supra, applies to the satisfaction of 

judgments in misdemeanor cases In courts other than justice 

courts. Article 920, supra, applies alone to convictions before justices of the peace. See Ex parte Fernandez (Texas 

Court of Criminal Appeals), 57 S.W. (2d) 78 and Ex parte MC 

Laughlin (Texas Court of Criminal Appeals 5 . 60 S.W. (2d) 786. 
Honorable E. L. Hinson, Jr., page 8 O-4924 

We quote from opinion No. O-441 of this department as 

follows: 

"It is the opinion of this department that 

$3.00 per day la the proper rate for allowance or 

credit to be given prisoners who 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 courts but the same Is mandatory as applied 

to justice courts. For example, A, B end C are 

all convicted in justice courts for misdemeanor. 

A's fine and costs amount to $15.00; B's fine end 

costs amount to $30.00 and C's fine and costs 

amount to $45.00. Under Article 920 of the Code 

of Criminal Procedure of Texas although said erticle allows $3.00 per day for $ail service, said 

article further provides e minimum of ten dagsslmprisonment. A must serve the minimum of ten days. 

B's fine and costs amount to $30.00 which divided 

by $3.00 would make ten days. C's fine and costs 

amount to 845.00: he is allowed $1.00 aer day; he 

must serve‘15 days." 

,- _ 

We quote from opinion No. 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 should receive credit for only one-tenth of the total amount 

for each day he serves. To illustrate, end carry 

Mr. Is example 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 five days in jail, he should be required to 

pay $7.50 in cash." 

Opinion No. o-1578 of this Department 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 county when he 

so discharges pert of the fine end costs and pays off a part, 

and that the same shall be properly prorated. 

Opinions Nos. 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 should go first to the payment of 

the costs and the balance, if any, to the amount of the fine 

and that where there Is not enough collected to pay all of the 

costs, the money should be prorated and that In such a case one 

officer had no priority over another. We quote from opinion 

No. O-755 as follows: 

"In view of the trial fee above provided, being a part of the costs, and by reason that the 

justice of the peace is paid by the county, it is 

our opinion that the $8.50 ln question should be 

prorated on the basis of $5.00 to the county attorney; $5-50 to the constable and $4.00 to the county, which figures approximately sixty-four and a 

fraction cents on the dollar. The county would get 

its prorata part of the payment. 

Opinions Nos. O-469 and 755, supra, cite Article 949 

of the Code of Criminal Procedure of Texas, which reads as 

follows: 

"Money collected by an officer upon recognizance, ball bonds and other obligations recovered 

under any provisions of this code, and all fines, 

forfeitures, judgments and jury fees, collected 

under any provisions of this code, shall forthwith 

be paid over by the officers collecting the same 

to the county treasurer of the proper county after 

first deducting therefrom the legal fees and commissions for collecting same." (Underscoring ours) 

We quote from opinion No. O-1792 of this department as 

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 that where there is not enough 

collected to pay all the costs, the money collected 

should be prorated between the arresting officer, 

the county attorney and the county. That no offlcer has priority over another in such matter. For 

example, if the fine and costs amount to $23.00, 

as In your case, the fee of the county attorney 

amounts to $5.00; the fee of the constable amounts 

to $13.00 and the trial fee amounts to $4.00; if 

the defendant paid $6.00 in cash and the balance 

is worked out on the county farm the arresting of- 
. 

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

ficer would be entitled to $3*55 of the cash payment? the county attorney would 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 attorney would 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 defendant worked out the balance of his fine 

and costs. Under the example quoted above the arresting officer would be entitled to receive from 

the county t'*e sum of $4.72; the county attorney 

would be entitled to receive from the county the 

SUJU of $1.82. The total sum received by the arresting officer from both sources would be $8.27; 

the total sum received by the county attorney from 

both sources would 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 fees due the Justices of the Peace and 

County Judges for their services in trying and finally dlsposing of criminal cases inasmuch as they are entitled to full 

fees from the county under ArtLcle 1052, V.A.C.C.P. for each 

criminal action tried and finally disposed of, irrespective of 

the collection or satisfaction of the judgments they render. 

It Is our oplnion that county attorneys, constables, 

sheriffs and clerks having costs in a misdemeanor case are not 

entitled to one-half fees under Article 1055, V.A.C.C.P., prior 

to satisfaction of the judgment by jail service, county farm 

service, road work service OP other legal service on other 

county projects as contemplated by Article 1055, V.A.C.C.P. 

However, Lf the judgment is satisfied in part only by such 

jail or other service under said Article 1055 saLd officers 

would be entItled to half-costs on the portion of the judgment which is satisfied. See Limited Conference Opinion No. 

O-1578 of this department, a copy of which is enclosed herewith. 

We answer your second question as follows: 

It is our opinion under the facts stated in your 

second question that the money collected should go first to 

the payment of the costs and the balance, If any, to the payment of the fine, and that where there Is not enough collected to pay all the costs, the money collected should be prorated among the officers having costs in the case and the 

county (for its trial fee). That no officer has priority over 
Honorable E. L. Hinson, Jr., page 11 O-4924 

another officer or over the county in such proration. The 

officers having costs in such case would also be entitled to 

half-costs from the county under said Article 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 opinion No. O-1792 of this department which 

thoroughly explains this matter ln detail. 

Article 1055, supra, provides that such half-costs 

shall be paid "out of the Road and Bridge Fund or other funds 

not otherwise appropriated". 

We answer your third question as follows: 

This department has repeatedly held that the Justice 

of the Peace has absolutely no authority to release a defendant who is finally convicted and a fine assessed against him 

on the defendant's promFse to pay later or on any other promise. We have likewise held repeatedly that if a Justice 

were to attempt to make such order the Sheriff or Constable 

should ignore the order and place the defendant In jail or 

on the county farm or other authorized county project for the 

satisfaction of the fine ana costs, unless the defendant paid 

the fine and costs. We have likewise repeatedly held that the 

Sheriff or Constable or other arresting officer would be in 

the position of unlawfully permitting a prisoner to escape if 

they falled to do their duty by not collecting the fine and 

costs or by not taking the convicted defendant in custody. 

It is our further opinion that the judgment of conviction in a misdemeanor case will authorize the Sheriff to proceed in the statutory methods of collection of the fine and 

costs and that no further orders from the JustIce of the Peace 

are necessary. In other words if the defendant does 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 should be 

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 Sheriff must, 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 it would be for the Commlssioners' Court to determine the necessity or advisability of working county prisoners on the county roads or other authorized 

county projects. 

Trusting that this satLsfactorily answers your FnqUiry, 

we are 
. . 

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

Very truly 

0 -4924 

yours 

ATTORNEY GENERAL OF TEXAS 

By s/wm. J. Fanning 

Wm. J:'Fanning 

Assistant 

WJF:mp:wc 

Encl. 

APPROVED OCT 24, 1942 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman