Untitled Texas Attorney General Opinion ( 1939 )

Honorable K. H. Dally ,Opinion No., O-1655
County Attorney
Hutchinson County Re: (a) Would a sheriff. imprisoning a man
Borger, Texas ..convicted of a misdemeanor and not pay-
ing his fine, be, guilty of false imprison-
ment under Article. 1169, Penal Code of
Texas, if he allowed the convict credit
‘only at the rate of one dollar ($1.00) per
.da,y during the period of his imprison-
ment? (b). Under Article 793, C.C~.P.,
must ,the convict, ,if required by the sheriff,
, make some kind of showing that he is un-
‘, able to pay the fine and costs adjudged
again~st him, ,or is the sheriff required to
.allow. the conv:ict Three Dollars ($3.00)
for each day of his imprisonment without
any showing that he is unable to pay his
fine costs ?
We are in receipt of your letter dated November 3, 1939, where-
in you request the opinion ;of this Department upon the above-stated ques-
tions.
Article 793, Code.of Criminal Procedure of Texas. as amended
by the Acts of 1937, ,Forty-fifth Legislature, First Called Session, reads as
follows :
“When a ~defendant,is convicted of a misdemeanor and
his punishment is assessed at a ‘pecunia~ry fine, if he is un-
able to pay the. fine and costs adjudged against him, he may
for such time as will satisfy the judgment be put to work in
the workhouse, or on the county farm, or ,public improvements
of the county, as provided in the succeeding Artic’le, or if
there be no such.workhouse, f,arm ,or improvements, he shall
be imprisoned in jail for a sufficient length of time to dis-
charge the full amount of ~fine ,and costs adjudged against him;
rating such labor or imprisonment at Three Dollars ($3) for
each day thereof; provided, however, that in all counties in
this State containing a population of not less than twenty-four
Honorable K. H. Dally, Page 2
thousand one hundred eighty (24,180) no,r more than twenty-
four thousand two hundred (24,200); or in any counties con-
taining a population of not less than forty-one thousand
(41,000) and not more than forty-two thousand (42,000); and
in all counties having a population of not less than forty-three
thousand and thirty (43,030) and not more than forty-three
thousand and fifty (43,050); and all counties having a popu-
lation of not les,s than thirty-seven thousand two hundred
eighty-six (37,286) and not ‘more than thirty-seven thousand
two hundred ninety (37,290); and all counties having a popu-
lation of not less than seven thousand one hundred (7,100)
nor more than seven thousand one hundred fifty (7,150); and
in counties containing a population of not less than thirty
thousand seven hundred and seven (30,707) nor more than
thirty thousand seven hundred and nine (30,709); and in coun-
ties containing a population of not less than twenty-seven
thousand five hundred forty-nine (27,549) nor more than
twenty-seven thousand five hundred fifty-one (27,551);and in
counties containing a population of not less than nineteen
thousand one hundred twenty-eight (19,128) nor more than
nineteen thousand one hundred thirty (19,130); and in counties
containing a population of not less than eighteen thousand eight
hundred fifty-nine (18,859) nor more than eighteen thousand
six hundred sixty-one (18,661); and in counties containing a
population of not less than ten thousand and thirteen (10,013)
nor more than tan thousand and fifteen (10,015). according to
the last preceding Federal Census, when a defendant is con-
victed of a misdemeanor and his punishment is assessed at
a pecuniary fine, if he is unable to pay the fine, if he is unable
to pay the fine and costs adjudged against him, he may for
such time as will satisfy the judgment be put to work in the
workhouse, or on the county farm, or public improvements of
the county, as provided in the succeeding Article, or if there
be no such workhouse, farm ‘or improvements, he shall be im-
prisoned in jail for a sufficient length of time to discharge the
full amount of fine and costs adjudged against him, rating such
labor and ,imprisonment at not less than Ona Dollar ($1) per
day nor more than Three Dollars ($3) per d,ay.
‘The Commissioners Court of each such county as de-
fined by population brackets above in this State, at any regular
or special term, shall, by order made and enter~ed in the min-
utes of said Court, determine the rate of wages to be paid con-
victs in their respective counties for labor or imprisonment
per day in accordance herewith.”
Honorable K. H. Dally, Page ,j
The Court oft GrSm~:A``~n.has’h~ld,~in an opinion de-
livered October 25, 1939, b``gud@$K~u@;a* inthecase of Ex Part-e Gussie
Ferguson, 132 S.W. (2d) 4d8t’Urat~the~:imcadrne`` to Article 793, Code of
Criminal Procedure, passed’:by th6Forty+f#th Legislature, supra, and
Articles 794a, 794b, 794~ and ,794& Q#&? Of. CLriminal Procedure, which
prescribe different credits fbr jMl,idrtice. in counties of different popula-
tions, are in contravention ofthe S&e and Fedderal’Constitutions and void.
Judge Kreugnr, in’htlr ~&rtii@nire&gnized the right of the relator
to be given credit under fhe gekeral, &w ,in affect,at the time of the pass.age
of the present Article 793, ,wbfeh’ill+nved T,hrire Dollars per day on fine and
costs, thereby eliminating the p@$&t~n brackets.
H&.chtn&m f@nnty. b#:.a,p@~tioa of fifteen thousand eight
hundred and forty-eight, accbrding’t;o~a Jast preceding Federal Census, and
does not come within any of the p&it&Map brackets set out in Article 793, or
any of the other abo.verment’ioned arficles. .therefiqr; the general rate of
Three Dollars per day has alw~ays:.bt~n~:applica`` to Hutchinson County as
prescribed by ArticJe 793,. Hutctl$``@t OeUaty is, therefore. not affected by
the opinion of Judge K,reuger~ ,drDo?r&:ln.,the Ex,Paite Fe.rguson case.
Article 920 dihe’Cd&Bf Crua&xal Racedtire of Texas reads
as follows:
“A defendant placed~ia``,``~ On :acco&of fatlure to pay
the fine and cpsts can be d~k&s&ted @n h&&as forpus by showing:
-‘*l. That he is f.~),,p@b;ti Pay the tiyidnd costs, and
“2. That .lushaa remsiiUk& in jUi ~a:suffietent length of
time to satiafy~the fine ,and.:cobta..at~,the``rata of three dollars
for each day.
‘But the defendaRt &a$l;‘tn ,no,~car(*z,udei this, article,
be discharged ~unttl,he’haa,.~bb,$n~&pris~oned-at least ten days;
and the justice of the peace, may~d$a&arge:~the defendant.upon
his showiqthe same cau86, by app&ation ta such justice; and
when such~ application is gti~atittid;‘the justice &hall note the same
on his d~ocket,’
The Caurt ofCiimtasl``lls h&s recognized a distinction
between the credit k, beaDowed #far ~serv#e -tnjaid;eer the two preceding
statutes:. Article 793. supra. appltea’ti the~,satisfacflon of judgment in mis-
demeanar cases in ceurts Q&e@ tbknrttstic~ c-t% f%& Ex Parte Fernandes,
57 S.W..(2d) 578; Ex Parte McLaugl&in, 6Q &W..@d) 78b.
. .-
Honorable K. H. Dally, Page 4
In themFernandez case, the relator, Fernandez, was convicted
in the District Court,of Nueces County, Texas, of a’misdemeanor and his
punishment assessed at a fine of $50.00 and costs~, amounting to $16.00.
Presiding Judge Morrow in this case wrote thenfollowing: i
“The chapter in which Article 920. supra, appears, is
one having reference to a judgment of conviction in a c:rimi-
nal action before a justice of the peace. From what has been
said it is apparent that the statutory enactments make a dis-
tinction on the subject. at hand with reference to ,the conviction
of a misdemeanor before the justice of the peace and the con-
viction of a misdemeanor in courts of higher jurisdiction. The
reason for the distinction may be only a matter of conjecture.
Since the statutory direction was definite in its terms, the duty
of the court to apply it as wr.itten is,mandatory. However, it
may be said that the justice courts are limited by the Constitu-
tion (Art. 5, Sec. 19) in criminal matters to a finenot,.exceeding
$200.00. whiles under Article 5, Section 16, other courts are
given jurisdiction in misdemeanors of much higher grade and
with penalties far Morse severe.”
In opinion No. 0- 1015 by Assistant Attorney General Benjamin
Woodall, directed to Honorable Tom Seay, County Attorney, Potter County,
Amarillo, Texas, appears the following language:
“In arriving at the proper credit to be allowed for
service in jail under a conviction in the justice court, we
must observe the.provisions of Article 920, Code of Crimi-
nal Procedure, supra, that ‘the def~endant shall, in no case,
under this article, be discharged until he has been imprisoned
,at least ten days;’
Yt is, therefore, our opinion that a prisoner convicted
in the justice court, when his total fine and costs is a, sum
under Thirty Dollars ($30.00) should receive credit for only
one-tenth of the total amount for each day he served ‘. . . ?
In the McLaughlin case, 60 S.W.(2d) 786, the relator was con-
victed in the corporation court of El Paso, Texas, and, hi,s fine assessed
at Thirty Dollars ($30.00). In that case, it was held that Article 793 was
applicable, and that Article 920, alone was applicable to convictions before
the justice of the peace.
From the holdings in the Fe,rnandez case and~the McLaughlin
case, and the recent opinion delivered by Judge Kreuger in the Ex Parte
Honorable K. H. Dally, Page 5
Ferguson case, it is apparent that a prisoner is entitled to Three Dollars
($3.00) per day for service in jail under a conviction of a misdemeanor
in any court. The only difference in the applications of Articles 793 and 920
between the justice court and other court convictions is that when a prisoner
is convicted-in a justice court, and serves his time in jail, “he shall; in no
case, be discharged until he has been imprisoned at least ten days.”
In light of the for,egoing discussion, we now come to consider
your first question.
The Constitution of Texas, Article I, Section 19, reads as fol-
lows :
“No citizen of this state shall be deprived of life, liberty
and property, privileges or immunities, or in any manner dis-
franchised, except by the~due course of the laws of the land.”
Article 1169 of the Penal Code of Texas, reads as follows:
“False imprisonment is the wilful detention of another
against his consent and where it is not expressly authorized
by law, whether such detention be effected by an assault, by
actual violence to the person, by threats or by any other means
which restrains the party so detained from removing from one
place to another as he may see proper.”
We quote from 19 Tex. Juris 560, as follows:
“The commonest suit for false imprisonment is one brought
against the sheriff or other officer of the law, and the most fre-
quent justification raised is that the defendant acted in obedience
to legal process which he was bound to obey. Imprisonment by an
officer under a warrant, fair and regular on its face, issued by legal
authority, is not a false imprisonment, but a legal imprisonment,
and no cause of action for damages rises against the officer for
lawfully executing the writ. If, however, the imprisonment is under
a warrant which is palpably illegal, or issued without the authority
of law, it constitutes a trespass to which the officer will be liable
in damages.”
Article 793, Code of Criminal Procedure, as it now reads,
and Article 920, of the Code of Criminal Procedure, expressly allow a
prisoner Three Dollars per day on fine and cost, for each day of his im-
prisonment. We know of no valid statute which allows to a prisoner con-
victed of a misdemeanor Andyassessed a pecuniary fine the sum of one dol-
Honorable K. H. Dally, Page 6
lar credit on his fine and costs for each day he is held in jail because of
his inability to pay his fine and costs in money.
There is a long line of decisions which hold that when a prisoner
has remained in jail for the time required by law to satisfy the amount of
his fine and costs, he is entitled to his release, and that a writ of habeas corpus
lies to procure the discharge of a defendant who has satisfied his fine and
costs. Ex Parte Hill, 15 SW. (2d) 14; Ex Parts Clayton, 103 S.W. 630; Ex
Parte Woodroe. 101 S.W. 226; Ex Parte Spears, 90 S.W. 1011, and Ex Parte
Reeves, 53 SW. 1022 and others.
“A person is not liable for the detention of another in
circumstances where the detention is authorized by law. The
authority need not be expressed; it is sufficient if, from all the
circumstances, the law would authorize the arrest. However, it
is presumed until the contrary is shown that the imprisonment
was unlawful; the prosecution need only prove the imprisonment,
and it is for the defendants to justify it by showing that it was law-
ful.” (19 Tex. Juris. 550)
Judge Critz, in the case of McBreath v. State, 12 S.W.(2d) 118,
wrote :
mCertainly it is not the law that an officer, or any one else,
c.an imprison a citizen of this state, without authority of law, and
in violation of his plain, constitutional, and statutory guaranty,
thereby forcing him to resort to writ of habeas corpus to gain his
liberty, and then set up the remedy he has forced on the party so
illegally arrested or imprisoned. as a defense.?
We have set out above the law applicable to your first question,
but this Department cannot pass upon the guilt or innocence of an individual,
this matter being within the province of the trial courts or juries of this
State.
Your second question is answered by our opinion No. O-1563,
a copy of which we are enclosing herewith.
Trusting that the foregoing satisfactorily answers your inquiries,
we remain
Yours very truly
DBD:LM:da
APPROVED DEC 9, 1939 ATTORNEYGENERALOF TEXAS
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS By /s/ D. Burle Daviss, Assistant
APPR~VED~PZNJONC~MMITTEEBYBWB,CHAIRMAN