# The Attorney General ofTexas
July 19, 1982 MARKWHITE AttorneyGeneral 

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AnEqualOppwlunityl Aflirmativa Acllon Employer Mr.Robert 0. Vitcrna Executive Director Texas Comieaiou onJail Standards P. 0. Box 12985 Austin. Texas 78711 opinion no. PllJ-497 Be: Accrual of good time credit byjail inmates

DearMr.Viterna: Youhave requested en opinion from this office concerning House Bill No. 647passed bythe Sixty-seventh Legislature which pertains to the manual labor of county jail prisoners and the commutation of time for good conduct and for the perforuence of manual labor. Acts 1981. 67th Leg., ch. 708, at 2647. Rouse Bill No. 647amends articles 43.10 and 45.53 of the Code of Criminal Procedure, and article 5118a. V.T.C.S. Youfirst ask the following question:

Do the provisions of section 1 of House Bill No. 647apply to workperformed in the county jail and/or the rehabilitation center? Section 1of House Bill No. 647 amends article 43.10 of the Code of Criuinal Procedure. The provision of the auended statute would spply to work perforned by a uisdeueanor convict during his incarceration in the county jail, but only if such labor is used upon public improvements. Sec. 4. This office reached the same conclusion in opinions ona similar question concerning the use of misdemeanor convict laborers. Attorney General Opinions E-1101 (1977); O-3260 (1941). Itach of those two opiniona considered vhether it would be necessary to establish a county workhouse or a county farm in order for acommissioner’s court to utilize the labor of persons convicted of misdemeanors. on public roads, bridges or other projects of the county. Both opinions construed the applicable language of articles 43.09 and 43.10 of the Code’ of Criminal Procedure and concluded that the labor of a misdemeanor convict could only beused uponpublic improvement. These provisions remain identical in pertinent respect to the earlier versions following the recent amendments by the Sixty-seventh Legislature.

p. 1777Mr. Robert 0. Pitema - Page 2 mu-497)

Article 43.09 provides in relevant psrt:

When a defeudaut is convicted of a misdemeanor... he may... be put to vork in the workhouse. or onthe county farm, or onthe public improveuents of the county.... Article 43.10 provides in relevant part:

1. Each comiasioners court x provide for the erection of aworkhouse and the establiehuent of a county farm in connection therewith for the purpose of utilisiug the labor of said parties so convicted;

.... 4. They shall be put to labor upon public works.... (Emphasis added). It becomes clear whenthese two articles are read together that the provisions of article 43.10 refer to three types of labor as set forth in article 43.09. You express coucero ia your request letter that a particular county has neither aworkhouse nor a county farm. Thecomissioners court has authority to establish these facilities to utilize convict labor, but it is not required to doso. Younext ask:

Do the provisions of section 1 of Eouse Bill No. 647 apply to innate6 going to be transferred to TDC? Asalready noted, section 1of Eouse Bill go. 647smende article 43.10 of the Codeof Criuiual Procedure. Article 43.10 does not apply to felouo who are in county jail merely awaiting transfer .to the Department of Corrections. Article 43.10. by its express term. applies “vhere the punishment assessed in aconviction for misdemeanor is coufinement injail for uore than one day, or... the puniehuent is assessed only at apecuniary fine and the party so convicted is unable to pay the fine.” Wherea person is convicted of a felony, and the punishuent assessed is only a fine or term of jail, or both,’ the judgment may be satisfied in the same manner as a misdemeanor c9nviction. Code Criu. Proc. art. 42.10. Thus, where a person convicted of a felony is punished by jail time, a fine, or both, article 43..10 spplies to him. ‘fhe punishment of confinement in the county jail is to be distinguished from iuprisonuent in aDepartment of Corrections institution. See Code Grim. Proc. art. 42.09. il. Since an inmate who is to x transferred to the Department of

p. 1778. . Mr.Robert 0. Viterna - Page 3 W-h97)

Corrections has not been convicted of an offense punishable by confinement in jail, he is not subject to the provisions of article 43.10. Younext ask the folloving question: Under section 2 of Eouse Bill No. 647, hov uuch credit can be given aa inuate with a one-year sentence? Section 2 of Eouae Bill No. 647 amends article 5118a. V.T.C.S., to read as follows:

in order to mcourage county jail discipline, a distinction uay 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;.... &mutation of time for good conduct, industry and obedience may be wanted the inmates of each countv la11 bv the sheriff in charge. A deduction in. t&ae not to exceed one (1) day for each day of the original sentence actually served maybe madefromthe term or terms of sentences whennocharge of misconduct has been sustained against the prisoner. This Act shall be applicable regardless of whether the judgment of~fouviction 18s fine orjail sentence or a combination of jail sentence and fine; provided, hovever, that such deduction in time shall not exceed one-third (l/3) of the original **sentence** as to fines and court costs assessed in the judpent of conviction. Aprieoaer under two (2) or uore cumulative sentences shall be alloued c-ration as If they vere all onesentence. For such sustained charge of uiaconduct in violation of any rule known to the prisoner (including escape or attempt to escape) any part or all of the coamutatlon which shall have sccrued under this Act in favor of the prisoner to the daa said misconduct maybe forfeited andtaken awayby the sheriff.... No other time allowance or credits in addition to the commutation of time for good conduct herein provided for maybe deducted frou the tens or terms of sentences. Thesheriff shall keep or cause tobe kept aconduct record in card or ledger form and a calendar card on each inmate shoving all forfeitures of coseNtatlon time andthe reasons therefor. (Emphasis added).

p. 1779l4r. Robert 0. Viteraa - Page 4 m-497)

The underlined portions indicate the changes msde by House Bill No. 647 in this article which otherwise is virtually unchanged since adopted by the Fifty-fourth Legislature in 1955. The major changes increase the time l llowabls for good conduct and llmlt forfeiture of cmtation to that accrued under thlr act. The legislature also carried over the provision originally enacted in 1955which states: “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.” See Acts - 1955. 54thLeg., ch. 461. at 1182. At first, article 5118a, V.T.C.S., would seemto limit the total credit which could be deducted froma one-year sentence to six months (or one (1) day for each day of the original sentence actually served). Flowever, this was clearly not the intent of the Sixty-seventh Legislature. Eouse Bill No. 647added atotally newprovision to article 43.10 of the Codeof Criminal Procedure which provides 8s follows:

For each day of manual labor, in addition to any other credits allowed by law, a prisoner is entitled to have one day deducted from each sentence he is serving. The deduction authorized by this Act, when combined with the deduction reauired bv Article 42.10, Code of Criminal Procedure, -1965, maynot exceed two-thirds (2/3) of the sentence. (Emphasis added). Sec. 1, subsec. 6. The first sentence of this section shows the legislsture’s intention to provide for cmtatlon at the rate of one dsy for each dayof manual labor In addition to other credits allowed bylaw, k. those allowed by article 5118a. The courts will, If possible, give effect to all sections of asingle statute. Threshing Machine Company v. Eowth. 293 S.W. 800 (Tex. 1927). Weshould attempt to harmonize and alve effect to the addition to article 43.10 as well as the amen&ent to article 5118a. Whenthe limitation set forth in article 5118a is read in the context of both acts, it becomes clear that this was intended to be a limitation on the authority of the sheriff to reward an Inmate for

“good conduct, industry andobedience” by commuting upto “one (1) day for each day of the original sentence actually served... when no charge of misconduct has been sustained against the prisoner.” The deductions provided for in article 43.10 have nothing to do with either the “good conduct” of the inmate or the authority of the

p. 1780Hr. Robert 0. Vlterna

-‘Page 5 (MU-497)

sheriff. Aprisoner becomes automatically “entitled” to these credits as asort of compensation for “each day of manual lebor.” The Sixty-seventh Legislature specifically llmlted the sheriff ’s authority to forfeit c-ration time to “any part or all of the cmtation which shall have accrued under this Act." @mphasls added). If an Inmate received the maximum **mount** of good time credit allowable under article 5118a and worked each day of his incarceration, hewould discharge three dsyr of his sentence for each day served. Thus. ona one-year sentence, an inmate could receive a maximumof eight months credit. Article 43.10 provides that “[tlhe deduction authorized by this Act, when combined with the deductions required by article 42.10 of the Code of Criminal Procedure. 1965, maynot exceed two-thirds (2/3) of the sentence.” Article 42.10 does not seem to “require” any deductions. Eowever, it would not appear to be necessary to analyze the legirlatlve intent behind this particular sentence in order to answer your specific queetion. Clearly the deduction authorized by article 43.10 when combined with the deductions authorized by any other existing **statutes** would not exceed eight months on a one-year sentence (or two-thirds of the sentence). Your fourth question is as follows:

Dothe provisions of section 2 of House Bill No. 647 [amending article 5118a. V.T.C.S.] apply to inmates going to be transferred to TDC? Such an iomete Is technically confined by order of the court In the Texas Department of Corrections and is therefore subject to the provisions of article 6181-l. V.T.C.S., regardlng good time. See Ex paa:’ ;311$, 548 S.W.Zd905 (1977). -- Inaddition, article 5118a states [t his Act shall be applicable regardless of whether the judgment of conviction is a fine orjail sentence or acombination of jail sentence, and fine.” (Emphasis added). It clearly, by its own terme, is not applicable to sentences for Incarceration in the Texas Department of Corrections. Your fifth question is as follows:

Under section 3 [of Eouse Bill No. 647 which amends article 45.53. of the Code of Criminal Procedure] since the act states that fines are satisfied ‘at the rate of not less than $15.00 for each day,’ can the sheriff orjustice of the peace increase the credit given aga1na.t fines?

p. 1781Mr. Robert 0. Vlterna - Page 6 (W-497)

Article 45.53 of the Code of Crlmioal Procedure provides in part:

A defendant placed in jail on account of failure to pay the fine and coets can be discharged onhabeas corpus by showing:

.... 2. That he has remained Injail a rufflclent length of time to satisfy the fine and costs, at the rate of not less than $15 for each day. The sheriff has authority under article 5118a. V.T.C.S.. to commute upto one-third of the total fine assessed against adefendant whois serving out afine In the county jail. Rxparte Mlnjareo, 582 S.W.2d 105 (Tex. Grim. App. 1978). Thecourt relied on the following language of the current version of article 5118a:

Adeduction in time not to exceed one third (l/3) of the original sentence maybemadefromthe term or term of sentences..

.. This Act shall be applicable regardless of whether the judgment of conviction is a fine or jail sentence or a combination ofjail sentence andfine.... Acts 1963, 58th Leg., ch. 371, at 943. The only change in this language relates to the amount of the deduction in time. Under this provision, the sheriff ’s action would in effect increase the credit given against such afine above the $15allowed byarticle 43.09. SUMMARY The provisions of article 43.10, V.T.C.S.. of the Code of Criminal Procedure apply to work performed by a misdemeanor convict during his incarceration in the county jail, but only if such labor is used upon public improvements. These provisions do not apply to convicted felons who are merely in county jail awaiting transfer to the Texas Department of Corrections. The maximum amount of credit which could be given to aninmate with a one-year sentence would be two-thirds of his sentence or eight months. The provisions of article 5118s. V.T.C.S., do not apply to inmates who are merely awaiting transfer to the Texas Department of Corrections. The sheriff could increase the credit given against a fine beyond the rate of $15.00 per day by commuting up to one-third of the total fine assessed sgainst a

p. 1782*.

. Hr. Robert 0. Viterna - Page 7 (Ml-497)

defendant in 

### additiontothecreditallowedunder 

### article

43.09. 

### V.T.C.S.

# v-.-&g

Attorney 

### General

ofTexas
JORNW.FAINTER,

JR. FirstAssistant

Attorney

General
RICRARDE.GRAYIII Executive

Assistant

Attorney 

### General Prepared

byMauryRexamer Assistant

Attorney

General
APPROVED: OPINIONCOMMITTEE SusanL.Garrison, 

### Chairman Jon

### Bible RickGilpin MauryHexamer 

### Patricia

Rinojosa JimHoellinger

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