Untitled Texas Attorney General Opinion ( 1962 )

.4&.@& c-/IpLf
May 2, 1962
Honorable Brandon Bickett Opinion No. WW-1326
County Attorneys
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 serv-
ing out his fine, and relat-
Dear 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 per-
mission 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 ex-
tend to all such as are orderly, indus-
trious and obedient, comforts and privi-
leges 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 (lnclud-
lng escape or attempt to escape) any
part or all of the commutation which
shall have accrued In favor of the prl-
soncr 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 defen-
dant 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, to bring him within the pro-
visions of Article 5118a, V,C.S,, would be to permit the sher-
iff 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 col-
lection of which he is by law made
chargeable. The sheriff my free him-
self 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 imprison-
ment 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 wil-
fully 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 col-
lection of fines, and were made plain
to meet just such cases as the pre-
sent. 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 con-
duct, 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
REVIEWEDFOR THRATTORNEX GENgRAL
BJr: Houghton Brownlee, Jr.