.4&.@& c-/IpLf 

May 2, 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 

a jail prisoner who is 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 who is in jail serving 

out his fine in the same manner as 

he would grant such commutation of 

time to an inmate or prisoner who 

,is In jail 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 

a fine 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 a portion 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 a distinction may be made 

In the term of prisoners so as to extend to all such as are orderly, industrious and obedient, comforts and privileges 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 

may be consistent with proper discipline. 

Commutation of time for good conduct, 

industry and obedience may be granted 

the inmates of each county jail by the 

sheriff In charge. A deduction In time 

not to exceed one third (.1/3) of the 

original sentence may be made from the 

term or terms of sentence when no 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 known to 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 

may be forfeited and taken away by the 

sheriff. No other time allowance or 

credits in addition to the commutation 

of time for good conduct herein provided 

for may be deducted from the term or 

terms of sentences.” 

Art. 785, C,C.P. reads: 

“When the judgment against a defendant is for a fine and costs he shall 

be discharged from the same: 

“1. When the amount there has been 

fully paid. 

” 2. When remitted by the proper 

authority. 
Honorable Brandon Bickett, Page 3 opini,on NO. .ww-1326 

” 3. When he has remained in custody 

for the time required by law to 

satisfy the amount thereof.” 

In the event the defendant, who has been assessed a fine . 

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, The punishment assessed against 

such defendant never consisted of a term in the county jail. 

He is only there by reason of his failure to pay the fine and 

costs. His release may be secured at any time by payment of 

the balance due on the fine and costs, either by himself or 

paid for him by his friends or relatives. Since his punishment 

only consists of ~a fine and costs, 

visions of Article 5118a, V,C.S,, 

to bring him within the prowould be to permit the sheriff to remit a portion of a cash fine, which Art. 5118a does 

not purport to do. In answer to your first question, we hold 

that Article 5118a, V.C.S. has no application to a prisoner in 

the county jail whose sole punishment is a fine and costs, and 

who is “laying out” the same S 

Attorney Oeseral’s Opinion No. ~-91.8 states that under 

Article 5118a, V,C.S.: 

the sheriff is given the 

discr&iioi of giving a prisoner a 

deduction la time even though he 

has a record of good conduct. This 

simply means that where a prisoner 

has an unquestioned 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 

We hold 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. The judge 

of the court In which the prisoner was convicted has no powers 

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 him with 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 my free 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 

same cannot be collected, or that the 

same has been discharged by imprisonment 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 a former 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% (now Article 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 a discharge of 

the judgments against them In one of 

the modes provided by law. The power 

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 do his duty in the collection of fines, and were made plain 

to meet just such cases as the present. Q D .” 

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 

may be for the collection of fines 

and costs ir misdemeanor cases." 

In answer to your third question, we hold 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 no application to a prisoner whose 

sole punishment consists of a fine and costs, 

and who is laying out the same in 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, 

WILL WILSON 

Attorney' General of Texas 

-" Riley Eugene Fletcher 

Assistant 

APPROVED: 

OPINION CONMITTE: 

W. V. Geppert, Chairman 

Marvin Sentelle 

Wm. Ii. Pool, Jr. 

Malcolm L. Quick 

REVIEWED FOR THRATTORNEX GENgRAL 

BJr: Houghton Brownlee, Jr.