# I"~EATTOIENEY GENERAL OF TEXAS AUSTIN 1s.

TwAe September 19, 1963

Honorable Joe Resweber County Attorney Harris County Courthouse Harris County Houston, Texas
Dear Mr. Resweber: Opinion No. C-144 Re: Construing H. B. 413, 58th Leg. relating to court costs in the Commutation of Time and Other Privileges Granted Inmates of the County Jail for Good Conduct Your letter requested an opinion from this office construing H. B. 413, enacted into law by the 58th Leg., R. S., 1963, Ch. 371,Page 943, as Article 51180,Vernon’s Civil Statutes. Your question was:

“Does this Act apply to or include court costs where thejudgment of conviction is for the payment of a fine and court costs?” Article 5118a,as amended reads as follows:

“Section 1. In order to encourage, county jail discipline, a distinction may be made in the terms of prisoner8 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 onprisoners for good conduct shall consist of such relaxation of strict county jail rules, and extension of social privileges anmay 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 (l/3) of the original sentence may be made from the term or terms of aentences when no charge of misconduct has been sustained againrt the prisoner. This Act shall be applicable regardlese ofwhether thejudgment of conviction is a fine or jail sentence, or a combination of .-.. ,.

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jail sentence and fine. A prisoner under two (2) or more cumulative senten1es shall be allowed commutation as if they were all one sentence. For such sustained charge ofmisconduct in violation ofany rule known to the prisoner (including escape or attempt to escape) any part or all of the commutation which shall have accrued in favor of the prisoner to the 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. The sheriff shall keep or cause to be kept a conduct record in card or ledger form and a calendar card oneach inmate showing all forfeitures of commutation time and the reasons therefor.

“Section 2, All laws or parts of laws in conflict with the provisions of this Act-are hereby repealed.

“Section 3.
. . . . i

“Section 4. The fact that the Attorney General ofthe State of Texas’ in Opinion No. WW-1326, dated May 2, 1962,ruled that the present Act does not empower the sheriff to grant commutation of sentence for good conduct to a county jail prisoner who is serving time injail in lieu ofpayment ofa fine, thus working an injustice and inequity against such prisoners who may be deserving of consideration because of orderly, obedient and industrious conduct, creates an emergency and an.imperative public necessity.that the Constitutional Rule requiring bills to be read on three several days in each House be suspended, and said Rule ia hereby suspended, andthat this Act shall take effect and be in force from and after its passage, and it is so enacted.” Article 783, Vernon’s Code of Criminal Procedure, reads in part as followa:“When the d,efendant is only fined the ,judg- -702-Honorable Joe Resweber, Page 3 (No. C-144)

ment shall be that the State of Texas recover of the defendant the amount of such fine and all costs ofthe prosecution, and that the defendant, if present, be committed tojail until such fine and costs are paid;
. . . . ” (Emphasis supplied) Article 784, Vernon’s Code of Criminal Procedure, reads as follows :

“If the punishment is any other than a fine,

thejudgment shall specify it, and order it enforced by the proper proress. It shall also adjudge the costs against, the defendant, and order the collection thereof ao in other cases.” Article 785, Vernon’s Code of Criminal Procedure, reads as follows: “When thejudgment against a defendant is

for a fine and cos,ts,heshall be discharged from the same:

“1.

“2.

“3. When the amount thereof has been fully, paid. When remitted by the proper authority. When he has remained in custody for the time required by law to satisfy the amount thereof.” (Emphasis supplied) In **Ex** Parte Mann, 46 S.W. 828 (Tex. Crim.;l898), the Court said:

“The whole the’ory of the law in Texas with

reference to the enforcement offines in misdemeanor convictions, includes costs as a part and parcel **of** thejudgment.” (Emphasis supplied) And Tex. Jur. 2d, Vol. 25, Payment of Coots, Section 12,Page 333, reads as follows:

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“Costs assigned against aDefendant must be satisfied before the Defendant can be discharged from ajudgment’for a’fine. This is also true of ajudgment of a,justice court. The enforcement offines in misdemeanor convictions includes costs as a part ofajudgment and rhe convict is not entitled to release from custody until he has satisfied both fine and costs.” (Emphasis supplied) . The 58th Legislature clearly expressed their reasons for, the intents and purposes of, and the objective desired in amending Article 5118aVernon’s Civil Statutes. .They were definitely in a beneficent mood andwere determined to restore clemency benefits to a certain class of jail .inmatis who had ,beendeprived, ofthe same byAttorney General’s Opinion No. WW-1326, 1962,which in our opinion was the correct interpretation ofthe law as then written.

Your question and.,request for an opinion on amended Article 5118asterna from the language used by the Legislature contained in Settion 1thereof, or to be more accurate and specific, you are concerned about the omission of certain words fram the pertinent 3rd sentence of Section 1,which reads:

“This Act shall be applicable regardless of whether thejudgment of conviction is a fine or jail sentence or a combination ofjail sentence and fine.” The omission from the above. of the usual words “court costs” or ‘“costs” ‘which have heretofore beerrueed .consistently in provisions or decisions relating to penalties offines or jail sentences does pose a question. However, the error appears inconsequential in view ofthewellgrounded law covering this wubject.

Statutory laws, court decisions and other authorities either declare **or** subscribe to the principle of law that in a’ judgment ofconviction for amisdemeanor offense carrying a penalty of afine or jail term - sentence that “court costs” are part andparcel of,such judgment, and that in the enforcement thereof, the total sum ofthe fine and costs therein, or the total length ofthejail term sentence and costs are considered as awhole to be satisfied before a discharge or release from same is in order. Therefore, we hold that this Act does apply to and include “court -704-Honorable Joe Resweber, Page 5 (No. C-144)

costs” where ajudgment of conviction is for the payment of afine and court costs.
SUMMARY

Article 5118a,Vernon’s Civil Statutes, as amended authorizes county sheriffs to award prisoners the commutation of time upto one-third (l/3) of the original sentence for good conduct, industry, and obedience andmakes same applicable regardless ofwhether thejudgment of conviction is a fine or jail sentence, or a combination ofjail sentence or fine. This Act does apply to and include court costs where thejudgment ofconviction is for the payment of a fine and court costs.

. Yours very truly, WAGGONER CARR Attorney General of Texas

BY Edward R. Moffet Assistant Attorney General ERM:nf APPROVED: OPINION COMMITTEE W. V. Geppsrt, Chairman Linward Shivers Brady Coleman Ben Harrison Pat Bailey APPROVEDFOR THEATTORNEYGENERAL BY: Stanton Stone

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