December 10, 1952

Hon. Darwin L. Wilder OpinionNo. 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 concerningmisdemeanor 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 disagreementas towho 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 thatwhenthe man has been convicted and placed in jail to lay a fine out, but later his friends pay him out, that he, the sheriff, shouldbe 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 safelykeep therein all prisoners committed theretoby lawful authority, subject to the order of the properHon. 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 jailby 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 procureball; but, he shall ao guard the accused as to prevent escape."
Clearly a constables may accept and approve a bond In a misdemeanor casewherehe 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 defendanthas been placed in jail
we believe the above quoted statutes confer exclusive jurisdictionin the sheriff of all prisonerswho have beenplaced in his custody and lodged in jail. Therefore, it Is our opinion that a constablemay not accept bond before trial of a defendant chargedwith a miademeanor after the prisonerhas been placed In the county jail in custody of the sheriff.

The statuteswhich 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 judgmenthas been rendered against a defendant for a pecuniary fine, if he is present, he shallbe imprisoned in jail until dischargedas providedby law. A certified copy of such judgment shall be sufficient to authorize such imprisonment."

Art. 788. %hen a pecuniary finehas been adjudged against a defendantnot present, a capias shall forthwithbe issued for his arrest. The sheriff shall execute the same by placing the defendant in jail."Hon. I$rwin L. Wilder, 'page3 (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 jailuntil the amount due upon such judgmentand the further costs of collecting the same are paid, or until the defendant is otherwise legally discharged."

Art. 795. ?ihen,by the judgmentof 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 convictedof a raiademeanor, the penalty of which or any part thereof Is imprisonment in jail, shall recite the judgmentand command the sheriff to place the defendant in jail to remain the length of time therein fixed; and thiswrit shall be sufficient to authorize the sheriff to place such defendant in jail."

Art. 797. "A defendantwho 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 defendantwaa imprisoned, to the proper court, ed." statinghow Itwas 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 Andycoats are paid;
or if the defendantbe not present, that a capiaa forthwith issue, commanding the sheriff to arrest the defendant and commithim to jail until such fine and coats are paid; also, that executionmay 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 commitmentbeing 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 authorizedby Article 788 and 78g1 supra, is iaaued and is the commitment.

It would appear that the sheriffhas exclusive custody and jurisdiction ,ofsuch prisonersplaced 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 showinghow the c mmitmenthas been executed. The sheriff and his bondam k are liable on the sheriff'sofficial bond~for the fin .andcosts until they are~paid or otherwise~legallydischarged in such
casea. Spradleyv. 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, tomake a return showinghow the commitmenthas been executed,we agree with you that the sheriff is the proper person to collect the fine and costs in misdemeanor caseswhere the defendanthas been',placed in the county jail,and the constable is unauthorized to collect same. In such
cases the sheriffreceives credit for the release fees.

S-Y

When a prisoner chargedwith a miademeanor hasp

b&en arrestedby 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 defendanthas been convicted, given a fine, and placed in jail for failure to pay the fine, the sheriff is the proper

### ,Hon. DarwlnL.Wilder,page5, (v-1548)

personto acceptthepaymentof the fine andreceivecreditforreleasefeewhen thepaymentismade.

Yoursverytruly,

APPROVED:

J.C. Davis,Jr. Countyhffalr8DlvLaion
MaryK. Wall ReviewingAssistant

CharlesD.Mathews FirstAssistant PRICEDANIEL, AttorneyGeneral

BY&-uceAllen Assistant