.4&.@& c-/IpLf May2, 1962
Honorable Brandon Bickett County Attorneys Opinion No. WW-1326 Blanc0 County~Courthouse Re: Authority of a sheriff to Johnson City, Texas grant one-third commutation of time for good conduct to ajail prisoner whois serving out his fine, and relatDear Mr. Bickett: ed questions. In your letter you asked the following questions:

“Whether it is legal for the Sheriff in charge of a County Jail to grant one-third commutation of time for good conduct to an inmate or prisoner whois in jail serving out his fine in the samemanner as he would grant such commutation of time to an inmate or prisoner who ,is Injail serving out his jail sentence.

“Also, in this connection, whether the Sh.eriff in cha.rge has the sole discretionary power to grant such commutation of time, or must he be required to obtain permission or consent of the Judge of the Court in whrch the prisoner or inmate has been convicted.

“And, further, does the County Judge, or the Sheriff, have charge and control of the collection of afine assessed by,the Judge?” Your opinion request further advises us that the prisoner **In** question was charged with the offense of “unlawfully hunting deer from an automohtle,” and after pleading guilty was assessed a fine and court cosbs. Being unable to pay his fine, he then served aportion of his fine **in** jail until being released by the Sheriff, purporting to act under Article 5118a, Vernon’s Civil’ Statutes.Honorable Brandon Bickett, Page 2 Opinion No. ~~-1326

Article 5118a, V.C.S. reads as follows~

“In order to encourage county jail discipline adistinction maybemade **In** the term of prisoners so as to extend to all such as are orderly, industrious and obedient, comforts andprivileges according to their deserts; the reward to be bestowed **on**such prisoners for good conduct shall consist of such relaxation of strict county jail rules, and extension of social privileges as maybe consistent with proper discipline. Commutation of time for good conduct, industry and obedience maybe granted the inmates of each county jail bythe sheriff In charge. Adeduction In time **not** to exceed one third (.1/3) of the original sentence maybe madefrom the term or terms of sentence whenno charge of misconduct has been sustained against the prisoner. **A**prisoner under two (2) or more cumulative sentences shall be allowed commutation as if they were all one sentence. For such sustained charge of misconduct In violation of any rule knownto the prfsoner (lncludlng escape or attempt to escape) any part or all of the commutation which shall have accrued In favor of the prlsoncr to that date of said misconduct maybe forfeited andtaken awaybythe sheriff. Noother time allowance or credits **in** addition to the commutation of time for good conduct herein provided for maybe deducted from the term or terms of sentences.”
Art. 785, C,C.P. reads:

“Whenthe judgment against adefendant is for a fine and costs he shall be discharged from the same:

“1. Whenthe **amount**there has been fully paid. ”2. Whenremitted bythe proper authority.Honorable Brandon Bickett, Page 3 opini,on NO..ww-1326

”3. Whenhe has remained in custody for the time required by law to satisfy the amount thereof.”
In the event the defendant, whohas been assessed afine

. and cost, refuses or is unable to pay the same, he may“lay out” such fine and costs at the rate of $3.00 per day, until the fine and costs are satisfied. If, after entering the jail and serving one or more days, he is able to raise some money to apply on the fine and costs, he will receive credit on such fine and costs at the rate of $3.00 for each day served, and Is only required to pay the balance due In order to secure his release. Art. 793, C.C,P, Thepunishment assessed against such defendant never consisted of aterm in the county jail. Heis only there byreason of his failure to pay the fine and costs. His release may be secured at any time bypayment of the balance due on the fine and costs, either byhimself or paid for him byhis friends or relatives. Since his punishment only consists of ~afine and costs, visions of Article 5118a, V,C.S,, to bring himwithin the prowould be to permit the sheriff to remit aportion of acash fine, which Art. 5118a does not purport to do. In answer to your first question, wehold that Article 5118a, V.C.S. has noapplication to aprisoner in the county jail whose sole punishment is a fine and costs, and whois “laying out” the sameS

Attorney Oeseral’s Opinion No. ~-91.8 states that under Article 5118a, V,C.S.:the sheriff is given the

discr&iioi of giving aprisoner a deduction la time even though he has arecord of good conduct. This simply means that where aprisoner has anunquestioned good conduot record, the sheriff is not under a duty to release him In less time than called for in the sentence.

. . .‘I The sheriff is the custodian of prisoners in the county jail. Art. 265, C,C.P. Art. 5118a, V,C.S. was enacted to assist the sheriff in maintaining proper discipline In the

Wehold therefore in answer to your second question, %?t*the sheri>f has the iole discretion under Art,. 5118a, V,C.S. la granting commutation of time of those prisoners lr his custody serving jail terms in the aounty jail. Thejudge of the court In which the prisoner was convicted has nopowers or authority under Art. 5118a, V.C,S,

Art. 1616, V.C.S. read.s:Honorable Brandon Blckett, Page 4 Opinion NO.~~-1326

“An account shall be kept with th.e sheriff charging himwith all judgments, fines, forfeitures and penalties, payable to and rendered inany court of the county, the collection of which he is by law made chargeable. The sheriff myfree himself from liability from such charge, by: ”1

. Producing the receipt of the county treasurer showing the payment of such judgment, fine forfeiture or penalty. “2. Showing to the satisfaction of the commissioners court that the samecannot be collected, or that the samehas been discharged byimprisonment or labor, or by escape, without his fault or neglect, and obtaining an order from said court allowing the same.” In Bradley v, State, 56 S.W. 11.4(Civ.App., 1900, error refused), the Court permitted recovery from aformer sheriff and his bondsmen for fines and costs assessed against defendants in the county court, which it was alleged that the sheriff had wilfully neglected and refused to collect. The Court reviewed Articles 838 and 839, Revised Statutes of 18% (nowArticle 1616, V.C.S,), and stated at page 116:

II The cow&y judge had no: authority’to direct the release of the parties without adischarge of the judgments against them In one of the modes provided by law. Thepower to remit fines is given by law to the governor alone. 0

. . These provisions of the Revised Statutes as well as of the Code of Criminal Procedure were enacted for the purpose of compelling the sheriff to dohis duty in the collection of fines, andwere madeplain to meet just such cases as the present. QD

.” Attorney General.‘s Oplnioa No. o-3262 (1941) states:

“You are respectfully advised that it is the opinion of this department. .

Honorable Brandon Bickett, Page 5 Opinion No. ~~-1.326

that you should ordinarily look to the sheriff or constable as the case maybe for the collection of fines and costs ir misdemeanor cases." In answer to your third question, wehold that the sheriff is charged with the collection of fines assessed In the county court. SUMMARY

Art. 5118a, V.C.S., which authorizes a sheriff to grant commutation of time to prisoners In the county jail for good conduct, has noapplication to aprisoner whose sole punishment consists of a fine and costs, and whois laying out the samein jail. The sheriff has the sole discretion under Art. 5118a, V.C.S. in granting commutation of time of those prisoners in his custody serving jail terms in the county jail. The sheriff is charged with the collection of fines assessed in county court.

,,Yours very truly, WILLWILSON Attorney' General of Texas

-" Riley Eugene Fletcher Assistant

APPROVED: OPINIONCONMITTE: W.V. Geppert, Chairman Marvin Sentelle Wm.Ii. Pool, Jr. Malcolm L. Quick REVIEWED

FORTHRATTORNEXGENgRAL BJr: Houghton Brownlee, Jr.