December 10, 1952 

Hon. Darwin L. Wilder Opinion No. V-1548 

County Attorney 

Denton County Re: Authority of a constable 

Denton, Texas to accept bond before 

trial from a prisoner 

who has been placed in 

county jail in the aher& 

iff's custody and his 

authority to accept such 

prisoner's fine after 

Dear Sir: conviction. 

Your request for our opinion concerning misdemeanor cases reads In part as follows: 

"(1) May a constable, after a prisoner 

has been placed in the County Jail in cuatody of the sheriff, accept bond before trial? 

(2) After conviction and while prisoner is in 

jail and custody of aherlfftl may the constable 

accept fine and commission? 

"FACTS: The sheriff and constable are 

in disagreement as to who should accept 

bond or receive credit (commissioner) for a 

fine in misdeameanor cases, usually D.W.I. 

and liquor violations. The sheriff, as 

custodian of the jail and prisoners, thinks 

that the constable should not be allowed to 

approve the bond and release the prisoner. 

He further thinks that whenthe man has been 

convicted and placed in jail to lay a fine 

out, but later his friends pay him out, that 

he, the sheriff, should be the proper person 

to receive the fine and collect the commission." 

Article 5116, V.C.S., provides in part: 

"Each sheriff is the keeper of the jail 

of his county. He shall safely keep therein 

all prisoners committed thereto by lawful 

authority, subject to the order of the proper 
Hon. Darwin L. Wilder, page 2 (V-1548) 

court, and shall be responsible for the 

safe keeping of such prisoners. 0 D ." 

Article 42, V.C.C.P., provides: 

"When a prisoner is committed to jail 

by warrant from a magistrate or court, he 

shall be placed in jail by the sheriff, It 

is a Violation of duty on the part of any 

sheriff to permit a defendant so committed 

to remain out of jail, except that he may, 

whena defendant is committed for want of 

bail, or when he arrests in a bailable case, 

give the person arrested a reasonable time 

to procure ball; but, he shall ao guard the 

accused as to prevent escape." 

Clearly a constables may accept and approve a 

bond In a misdemeanor case where he makes the arrest 

after a warrant is issued and before the defendant Is 

placed in jail. Arts. 270 et seq., 286, 454, V.C.C.P. 

However, after the defendant has been placed in jail 

we believe the above quoted statutes confer exclusive 

jurisdiction in the sheriff of all prisoners who have 

beenplaced in his custody and lodged in jail. Therefore, it Is our opinion that a constable may not accept 

bond before trial of a defendant charged with a miademeanor after the prisoner has been placed In the 

county jail in custody of the sheriff. 

The statutes which are'pertinent to your 

second question are Articles 787, 788, 789, 795, 796, 

797, and 783, V.C.C.P. and provide aa followa: 

Art. 787. %hen 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." 

Art. 788. %hen 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." 
Hon. I$rwin L. Wilder, 'page 3 (V-1548) 

Art. flg.,%here such capiaa issues, it shall 

state the rendition and amount of 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." 

Art. 795. ?ihen, by the judgment of the court, 

a defendant is to be imprisoned in jail, a 

certified copy of such judgmerkshall be sufficient authority for the sheriff to place 

such defendant in jail." 

Art. 796. "A capias issued for the arrest 

and commitment of one convicted of a raiademeanor, the penalty of which or any part thereof Is imprisonment in jail, shall recite the 

judgment and command the sheriff to place 

the defendant in jail to remain the length of 

time therein fixed; and this writ shall be 

sufficient to authorize the sheriff to place 

such defendant in jail." 

Art. 797. "A defendant who has remained in 

jail the length of time required by the judgment shall be discharged. The sheriff shall 

return the copy of the judgment, or the 

capiaa under which the defendant waa imprisoned, 

to the proper court, 

ed." 

stating how It was executArt. 783. "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 coatsof the prosecution and 

that the defendant, if present, be committed 

to jail until such fine Andy coats are paid; 

or if the defendant be not present, that a 

capiaa forthwith issue, commanding the sheriff 

to arrest the defendant and commit him to jail 

until such fine and coats are paid; also, that 

execution may Issue againstthe property of 

such defendant for the amount of such fine 

and costs.' 
Hon. Darwin L..Uilder, page 4 (v-1548) 

It is seen from the above statutes that the 

sheriff is required to imprison the defendant in such 

a case upon a commitment being issued. The "commitment" which the sheriff exe,cutes in such cases Is a 

certified copy of the judgment, if the defendant is 

present, as provided in Article 787, aupra. If in 

such a case the defendant is not present, the "capias" 

as authorized by Article 788 and 78g1 supra, is iaaued 

and is the commitment. 

It would appear that the sheriff has exclusive custody and jurisdiction ,of such prisoners placed 

in his custody and lodged in the county jail. Further, 

he is required by Article 797, aupra, to make a return 

to the proper court showing how the c mmitment has been 

executed. The sheriff and his bondam 

k 

are liable on 

the sheriff's official bond~for the fin .and costs until 

they are~paid or otherwise~legally discharged in such 

casea. Spradley v. State, 56 S.W. 114 (Tex.Civ.App. 

1900, error ref.). Since the sheriff is liable for 

the collection of the fine and coats-and further since 

he is required by Article 797, supra, to make a return 

showing how the commitment has been executed, we agree 

with you that the sheriff is the proper person to 

collect the fine and costs in misdemeanor cases where 

the defendant has been',placed in the county jail, and 

the constable is unauthorized to collect same. In such 

cases the sheriff receives credit for the release 

fees. 

S-Y 

When a prisoner charged with a miademeanor hasp b&en arrested by a constable 

and placed in county jail in the custody 

of the sheriff, the sheriff is the proper 

person to accept and approve bail bond 

pending trial. Art. 42, V.C.C.P. 

After the defendant has been convicted, 

given a fine, and placed in jail for failure 

to pay the fine, the sheriff is the proper 
,Hon. Darwln L. Wilder, page 5, (v-1548) 

person to accept the payment of the fine 

and receive credit for release fee when 

the payment is made. 

Yours very truly, 

APPROVED: 

J. C. Davis, Jr. 

County hffalr8 DlvLaion 

Mary K. Wall 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

PRICE DANIEL, 

Attorney General 

BY 

&- uce Allen 

Assistant