Untitled Texas Attorney General Opinion ( 2001 )

OFFICE OF THE ATTORNEY GENFR.-ZL - STATE OF TEXAS
JOHN CORNYN
July lo,2001
The Honorable James M. Kuboviak Opinion No. JC-0393
Brazos County Attorney
300 East 26th Street, Suite #325 Re: Whether a defendant convicted of multiple
Bryan, Texas 77803 class C misdemeanors who defaults on the fines
and court costs he or she is sentenced to pay and
who is therefore confined discharges the fines and
court costs concurrently or consecutively, and
related questions (RQ-033%JC)
Dear Mr. Kuboviak:
You ask three questions on behalf of the Brazos County Sheriffs Office. You ask first
whether a misdemeanant convicted of multiple class C offenses who fails to pay fines or court costs
serves terms of confinement for default concurrently or consecutively.’ Consistently with article
43.03(b) of the Code of Criminal Procedure, we conclude that amisdemeanant who is confined when
a court orders a term of confinement to enforce the discharge of a fine or costs on another conviction
serves the confinements concurrently unless the court orders otherwise. See TEX.CODE CRIM.PROC.
ANN. art. 43.03(b) (Vernon Supp. 2001). If the defendant is ordered to be confined to enforce the
discharge of multiple fines or costs when he or she is not confined, however, the confinements are
served consecutively. You ask second whether, if we determine that the fines and court costs are
discharged consecutively, the justice of the peace must send a written judgment to the jail stating as
much. See Request Letter, note 1, at 1; Brief, note 1, at 4. With respect to those cases where fines
or costs are discharged consecutively, we conclude that the order must comport with article 42.08
of the Code of Criminal Procedure and must contain five elements that Texas courts have listed on
numerous occasions. See TEX. CODECRIM. PROC. ANN. art. 42.08(a) (Vernon Supp. 2001); see, e.g.,
Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 1986) (en bane). You ask third whether,
when a convicted defendant spends time in jail on multiple class C misdemeanor charges prior to
being sentenced, the jail time runs concurrently or consecutively. See Request Letter, supra note 1,
at 1. We conclude that an individual convicted of multiple misdemeanors must be credited as though
the time ran concurrently. See Hannington v. State, 832 S.W.2d 355,356 (Tex. Crim. App. 1992)
(en bane) (per curiam).
‘See Letter from Honorable James M. Kuboviak, Brazos County Attorney, to Honorable John Comyn, Texas
Attorney General (Jan. 11, 2000) ( on file with Opinion Committee) [hereinafter Request Letter]; Brief attached to
Request Letter at 1 [hereinafter BriefJ.
The Honorable James M. Kuboviak - Page 2 (JC-0393)
Because a defendant charged with a class C misdemeanor may be tried in a justice or
municipal court, we examine first chapter 45 of the Code of Criminal Procedure. See TEX. CONST.
art. V, 5 19 (providing justice court with “original jurisdiction in criminal matters of mis-
demeanor cases punishable by fine only”); TEX.CODECRIM.PROC.ANN. arts. 4.11 (a), 4.14(a) - (c)
(Vernon Supp. 2001) (delimiting jurisdiction ofjustice and municipal courts); Tex. Att’y Gen. Op.
No. JC-0246 (2000) at 2 (stating that “only justice and municipal courts have jurisdiction of Class
C misdemeanors”). Chapter 45 generally sets out the procedures a justice or municipal court must
follow in trying a class C misdemeanor case. See TEX.CODECRIM.PROC.ANN. art. 45.002 (Vernon
Supp. 2001). But where chapter 45 “does not provide a rule of procedure governing” an aspect of
the case, the court must apply one of the Code of Criminal Procedure’s general provisions “to the
extent necessary to achieve” chapter 45’s objectives, which include providing defendants with due
process and ensuring appropriate dignity and predictability in the court. Id.; see id. art. 45.001
(stating objectives).
Once convicted, a defendant found guilty of a class C misdemeanor may be sentenced to pay
a fine not to exceed $500. TEX. PEN. CODE ANN. 8 12.23 (Vernon 1994). But see id. 8 12.43(c)(2)
(Vernon Supp. 2001) (permitting certain repeat offenders to be confined); see also id. $5 42.01,
49.02 (concerning disorderly conduct and public intoxication). The class C misdemeanant also may
be required to pay certain court costs. See, e.g., TEX. CODE CRIM. PROC. ANN. arts. 102.002(c)
(Vernon Supp. 2001) (stating that misdemeanant is “liable on conviction” for witness fees), .004(a)
(requiring misdemeanant to pay jury fee), .009 (permitting commissioners court in county with
population of two million or more to set court costs for class C misdemeanants). A misdemeanant
who defaults in paying the fine or court costs may be confined in jail until the misdemeanant
discharges the fine or costs “by law,” but the misdemeanant may not be confined if the court finds
that (1) the misdemeanant made a good-faith effort to discharge the fine and costs, or (2) the
misdemeanant is indigent. See id. art. 45.046(a). But see id. art. 45.050(a) (prohibiting justice court
from ordering child’s confinement). Unless the defaulting misdemeanant subsequently pays the fine
and costs, he or she must remain in jail long enough “to satisfy the fine and costs, at the rate of not
less than $100 for each day or part of a day of jail time served.“2 Id. art. 45.048.
In the alternative, a court may enforce the discharge of a fine or costs using means that do
not involve confinement. The justice or judge may, for instance, order that the fine and costs be
collected against a misdemeanant who has defaulted by executing against the misdemeanant’s
property. Id. art. 45.047. Or the court may require a misdemeanant who has defaulted or who is
indigent to perform community service “to discharge all or part of the fine or costs.” Id. art.
45.049(a), (c). A misdemeanant who is required to perform community-service work discharges the
fine or costs at the rate of $100 for each eight hours of service. See id. art. 45.049(e).
2House Bill 1955, which has been sent to the Governor, proposes to amend article 45.048 of the Code of
Criminal Procedure to permit a court to vary the period of time, from eight hours to twenty-four hours, that a convicted
defendant must remain confined to satisfy $100 of the fme and costs. See Tex. H.B. 1955,77th Leg., R.S., 5 1 (2001).
If Governor Perry signs House Bill 1955, it will take effect on September 1,200l. See id. 5 3.
The Honorable James M. Kuboviak - Page 3 (JC-0393)
Because chapter 45 does not provide for a misdemeanant who defaults on multiple fines or
costs, we look to “other general provisions of this code to the extent necessary to” serve the chapter’s
objectives. Id. art. 45.002; see id. art. 45.001 (listing chapter 45’s objectives); cj: Tex. Att’y Gen.
Op. No. JC-0246 (2000) at 3 (determining that chapter 45 provision that applies specifically to rate
at which misdemeanant sentenced by justice or municipal court prevails over general, conflicting
provision in chapter 43 of Code of Criminal Procedure). A brief attached to your letter assumes that
the appropriate general provision is article 42.08 of the Code of Criminal Procedure. See Brief,
supra note 1, at 1 (“The question posed is: Under [article] 42.08 . . . , when a defendant is serving
time in jail for failure to pay the fines and court costs on multiple class C misdemeanor cases, are
the fines and court costs . . . discharged concurrently or consecutively?“). The same brief assumes
that article 43.03(b) does not apply. See id. at 4 (“Because there is no term of confinement for fine[-
Ionly class C offenses . . . , [article 43.03(b)] does not apply. . . .“); cJ: Tex. Att’y Gen. Op. No. JC-
0246 (2000) at 1 (stating that chapter 43 constitutes general law that applies to executing judgment
in criminal case). We examine each assumption.
Article 42.08 does not apply to this issue because it does not apply to confinement used to
enforce the discharge of fines or costs. Article 42.08, titled “Cumulative or concurrent sentence,”
provides that a defendant who has been convicted of multiple offenses may serve the sentences
concurrently or consecutively, depending upon the judgment:
When the same defendant has been convicted in two or more
cases, judgment and sentence shall be pronounced in each case in the
same manner as if there had been but one conviction. Except as
provided by Sections (b) and (c) of this article [which we assume do
not apply here], in the discretion of the court, the judgment in the
second and subsequent convictions may either be that the sentence
imposed or suspended shall begin when the judgment and the
sentence imposed or suspended in the preceding conviction has
ceased to operate, or that the sentence imposed or suspended shall run
concurrently with the other case or cases, and sentence and execution
shall be accordingly.
TEX. CODECRIM. PROC.ANN. art. 42.08(a) (Vernon Supp. 2001); cj: TEX. PEN. CODEANN. 8 3.03(a)
(Vernon Supp. 2001) (stating that when convicted criminal offender “is found guilty of more than
one offense arising out of the same criminal episode prosecuted in a single criminal action,”
sentences generally run concurrently). Attorney General Opinion JM- 107 determines that article
42.08 applies to punitive confinement, but that it does not apply to confinement for the purpose of
enforcing the payment of fines or costs: “Misdemeanors may be cumulated under article 42.08, but
only where the punishment is confinement and not fines. . . . Fines imposed in two or more
misdemeanors are not made concurrent when converted to imprisonment-they remain separate
judgments to be discharged cumulatively.” Tex. Att’y Gen. Op. No. JM-107 (1983) at 1 (citations
omitted). As the Court of Criminal Appeals has intimated, confinements to enforce payment of
multiple fines or costs run consecutively so that the misdemeanant may not satisfy many smaller
The Honorable James M. Kuboviak - Page 4 (JC-0393)
judgments by discharging the largest of the fines assessed against him or her. See Exparte Minjares,
582 S.W.2d 105,107 (Tex. Crim. App. 1978); see also Exparte Hall, 258 S.W.2d 806,807 (Tex.
Crim. App. 1953), cert. denied sub nom. Hall v. Ellis, 348 U.S. 930,349 U.S. 966 (1955), 351 U.S.
955 (1956); Exparte Banks, 53 S.W. 688, 689 (Tex. Crim. App. 1899); Veteto v. State, 8 S.W.3d
805, 817 (Tex. App.-Waco 2000, pet. ref d) (construing section 3.03 of Penal Code); Rocky
Mountain v. State, 789 S.W.2d 663,664-65 (Tex. App.-Houston [ 1st Dist.] 1990, pet. ref d) (same).
You question whether Attorney General Opinion JM- 107 remains a correct statement of the
law in light of amendments made to article 42.08 since the opinion was issued. See Brief, supra note
1, at 2. If the opinion is no longer correct, you suggest, then article 42.08 applies to confinements
ordered to enforce the discharge of multiple fines or costs as well as to punitive confinement. When
this office issued Attorney General Opinion JM-107 in 1983, article 42.08 applied only to a
defendant sentenced to confinement in an institution operated by the Department of Corrections or
in jail:
When the same defendant has been convicted in two or more
cases, and thepunishment assessed in each case is confinement in an
institution operated by the Department of Corrections or the jailfor
a term of imprisonment, . . . the judgment in the second and
subsequent convictions may either be that the punishment shall [run
consecutively or concurrently].
Act of May 27, 1965, 59th Leg., R.S., ch. 722, art. 42.08, 1965 Tex. Gen. Laws 317, 486-87
(emphasis added), amended by Act of Apr. 2, 1985, 69th Leg., R.S., ch. 29, 5 1, 1985 Tex. Gen.
Laws 404,404; Act ofMay 28, 1987,7Oth Leg., R.S., ch. 513, 8 1, 1987 Tex. Gen. Laws 2125,
2125; Act ofMay 29,1989,7lst Leg., R.S., ch. 785, 9 4.11,1989 Tex. Gen. Laws 3471,3495; Act
of May 29, 1993,73d Leg., R.S., ch. 900, 8 5.03, 1993 Tex. Gen. Laws 3586,3752. In 1987 the
legislature amended article 42.08 to delete the phrase italicized above. See Act of May 28, 1987,
70th Leg., R.S., ch. 513, 8 1, 1987 Tex. Gen. Laws 2125, 2125. You aver that this deletion
effectively overrules Attorney General Opinion JM-107’s conclusion with respect to confinement
ordered to enforce the discharge of a fine or costs. See Brief, supra note 1, at 2.
We affirm Attorney General Opinion JM-107’s conclusion that article 42.08 of the Code of
Criminal Procedure does not apply to a confinement ordered to enforce the discharge of multiple
fines or costs. None of the amendments to article 42.08 that have been adopted since Attorney
General Opinion JM-107 was issued, including the 1987 amendment to which you refer, affect this
conclusion. See Act of Apr. 2, 1985, 69th Leg., R.S., ch. 29, 9 1, 1985 Tex. Gen. Laws 404,404;
Act of May 28, 1987,7Oth Leg., R.S., ch. 513, 8 1, 1987 Tex. Gen. Laws 2125,2125; Act of May
29,1989,7lst Leg., R.S., ch. 785,§ 4.11,1989 Tex. Gen. Laws 3471,3495; Act of May 29, 1993,
73d Leg., R.S., ch. 900, 6 5.03, 1993 Tex. Gen. Laws 3586, 3752. The 1987 amendment, in
particular, deleted article 42.08’s references to imprisonment apparently to permit a court to specify
whether probated sentences-not just confinements-would be cumulatively or concurrently served
“with other probated sentences or imprisonments.” HOUSECOMM.ONCRIMINALJURISPRUDENCE,
The Honorable James M. Kuboviak - Page 5 (JC-0393)
BILL ANALYSIS, Tex. H.B. 554, 70th Leg., R.S. (1987); accord HOUSE RESEARCHORG.,BILL
ANALYSIS, Tex. H.B. 554, 70th Leg., R.S. (1987). Nothing suggests that the legislature in 1987
intended to affect Attorney General Opinion JM-107. Moreover, as recently as last year, the Texas
Court of Appeals has restated the “long[-]standing rule . . . that fines are cumulated.” Veteto, 8
S.W.3d at 8 17; see also Rocky Mountain, 789 S.W.2d at 665 (“LO]ur research of the law controlling
the cumulation of ‘sentences’ reveals that fines have been cumulated in those same cases where
prison sentences are required to run concurrently.“). Accordingly, we affirm that article 42.08 of the
Code of Criminal Procedure applies to punishment, not to terms of confinement to which a
misdemeanant is subjected to enforce the discharge of multiple fines or costs.
Nevertheless, Attorney General Opinion JM-107 has been superseded by amendments to
article 43.03(b) of the Code of Criminal Procedure to the extent the opinion indicates that a
misdemeanant who is confined to enforce the discharge of a fine or costs in connection with one
offense and who, during confinement, is ordered to serve another term of confinement for another
default serves the terms consecutively. Article 43.03(b)-in its second sentence-directs that a
convicted defendant who, while serving a term of confinement for default or for punishment, is
ordered to serve another term of confinement for default serves the terms concurrently unless the
court orders that the confinements run consecutively:
A term of confinement for default in payment of fine or costs
or both may not exceed the maximum term of confinement authorized
for the offense for which the defendant was sentenced to pay the fine
or costs or both. If a court orders a term of confinement for default
in payment of fines or costs under this article at a time during which
a defendant is serving another term ofconfinement for default or is
serving a term of confinement for conviction of an offense, the term
of confinement for default runs concurrently with the other term of
confinement, unless the court orders the terms to run consecutively
under Article 42.08 of this code.
TEX. CODE GRIM. PROC. ANN. art. 43.03(b) (Vernon Supp. 2001) (emphasis added). The second
sentence was added to article 43.03(b) in 1993, ten years after Attorney General Opinion JM- 107
was issued. See Act of May 29, 1993, 73d Leg., R-S., ch. 900, 8 5.04, art. 43.03, 1993 Tex. Gen.
Laws 3586, 3756; Tex. Att’y Gen. Op. No. JM-107 (1983). Because of the 1993 amendment to
article 43.03(b), a defendant convicted of multiple class C misdemeanors, who defaults on one
sentence and is confined for the default, and who then defaults on another sentence serves the terms
of confinement concurrently unless the court orders otherwise.
But article 43.03(b) does not supersede Attorney General Opinion JM-107 insofar as the
opinion concludes that a defendant who is not confined when he or she is ordered to be confined for
multiple defaults must serve the confinements consecutively. Article 43.03(b)‘s second sentence
plainly limits its application to a convicted defendant who “is serving another terrn of confinement”
at the time an order is issued requiring further confinement to enforce payment of a fine or costs; it
The Honorable James M. Kuboviak - Page 6 (JC-0393)
does not refer to a convicted defendant who is not confined when the subsequent confinement order
is issued.
This is a curious result. Your brief, for example, outlines various situations in which a
defaulting class C misdemeanant may be confined. See Brief, supra note 1, at 3’6-7. In one traffic
stop, a defendant may be cited for, and ultimately convicted of, multiple misdemeanors: speeding,
running a stop sign, failure to present a driver’s license, and failure to maintain financial
responsibility. CJ: id. at 6; Atwater v. City ofLago Vista, 2001 WL 408925 (U.S. 2001) (stating that,
in one traffic stop, defendant “charged with driving without her seatbelt fastened, failing to secure
her children in seatbelts, driving without a license, and failing to provide proof of insurance). Given
that the defendant in such a case, if he or she is going to default on fines or costs ordered in the case,
may default on all of them at the same time, it is likely he or she will be ordered to confinement
for all of the defaults at the same time, while the defendant is presumably not being confined. In
this instance, article 43.03(b) would not apply, and under the rationale of Attorney General Opinion
JM-107 and the cases cited therein, the defendant would serve the confinements consecutively. In
other cases, a defendant may be convicted of misdemeanors arising from offenses occurring at
different times and may be confined for defaulting on one of the early offenses when he or she is
ordered to be confined for defaulting on a later offense. In this instance, article 43.03(b) directs that
the confinements be served concurrently unless the judge orders otherwise.
Nevertheless, we construe article 43.03(b) consistently with its unambiguous language,
although the legislature may have intended that the two classes of defaulting misdemeanants be
treated the same. A bill analysis discussing the 1993 legislation that added the second sentence of
article 43.03(b) suggests a purpose broader than the statute’s plain language suggests: “[Article
43.03(b)] specifies that a term of confinement for default runs concurrently with other terms
of confinement unless the court orders the terms to run consecutively.” HOUSECOMM. ON CRIMINAL
JURISPRUDENCE,BILL ANALYSIS, Tex. C.S.S.B. 1067, 73d Leg., R.S. (1993); see Act of
May 29,1993,73d Leg., R.S., ch. 900,§ 5.04, art. 43.03’1993 Tex. Gen. Laws 3586,3756. But this
whisper of a legislative intent to apply to all confinements for multiple defaults is a slim reed on
which to adopt a construction contrary to the statute’s plain language. Moreover, where a statute’s
plain language may differ from legislative intent, we interpret the statute consistently with its
unambiguous language. As the Texas Court of Criminal Appeals has stated:
When we interpret statutes, we seek to effectuate the
collective intent or purpose of the legislators who enacted the
legislation. Boykin v. State, 818 S.W.2d 782,785 (Tex. [Crim.] App.
1991). We focus our attention on the literal text of the statute in
question and attempt to discern the fair, objective meaning of that text
at the time of its enactment. [Id.] Thus, if the meaning of the
statutory text should have been plain to the legislators who voted on
it, we ordinarily give effect to that plain meaning. [Id.] The
exception is when application of a statute’s plain language would lead
to absurd consequences that the legislature could not possibly have
The Honorable James M. Kuboviak - Page 7 (JC-0393)
intended; in such a case, we refer to extratextual factors to determine
legislative intent. [Id.]
Exparte Ruthart, 980 S.W.2d 469,471 (Tex. Crim. App. 1998) (per curiam).
Your brief suggests that article 43.03 does not apply. Brief, supra note 1, at 4. Referring to
the first sentence of subsection (b), you point out that “there is no term of confinement for fine only
class C offenses under [section] 12.41 of the Texas Penal Code.” Id.; see TEX. CODE GRIM. PROC.
ANN. art. 43.03(b) (Vernon Supp. 2001). You assume that the last sentence of subsection (b) is
limited by the preceding sentence-the first sentence of subsection (b)--and that it does not apply
to a class C misdemeanor.
We do not read the second sentence of section 43.03 to apply only to offenses for which
confinement may be part of the punishment. Section 45.002 of the Code of Criminal Procedure
instructs justice and municipal courts to refer to procedures in general provisions elsewhere in the
code if chapter 45 does not provide a procedure, but only “to the extent necessary to achieve” chapter
45’s objectives. Id. art. 45.002. Chapter 45 thus contemplates that a justice or municipal court may
apply only part of a general provision; it need not apply a general provision in its entirety. Indeed,
with respect to section 43.03(b), the first sentence directly conflicts with article 45.046, which
expressly authorizes a court to order a defaulting misdemeanant to be confined in certain
circumstances. Compare id. art. 43.03(b) (“A term of confinement for default in payment of fine
or costs or both may not exceed the maximum tern-i of confinement authorized for the offense for
which the defendant was sentenced to pay the fine or costs or both.“) with id. art. 45.046(a) (“When
a judgment and sentence have been entered against a defendant and the defendant defaults in the
discharge of the judgment, the judge may order the defendant confined in jail until discharged by
law” if the judge makes certain determinations). By contrast, the second sentence of article 43.03(b)
fills a gap in chapter 45 by providing a rule regarding the running of multiple terms of confinement
for defaulting on a fine or costs. See id. art. 45.002 (directing court to apply “other general
provisions” of Code of Criminal Procedure as necessary if chapter 45 “does not provide a rule of
procedure governing any aspect of a case”).
Consequently, to answer your first question, we conclude that a misdemeanant who defaults
on the fines or costs ordered in connection with multiple class C misdemeanors and who is ordered
to discharge the fines or costs by being confined, ordinarily serves the terms of confinement
concurrently if the misdemeanant is already confined when he or she is so ordered. The court may,
however, order the terms to run consecutively under article 42.08 of the Code of Criminal Procedure.
See id. arts. 42.08,43.03(b). And if the misdemeanant is not confined at the time of the order, he
or she serves the terms consecutively.
In those cases where the fines or costs are to be discharged consecutively, you ask whether
the justice of the peace (or municipal court judge) must send a judgment to the jail stating as much.
See Request Letter, supra note 1, at 1. Given the answer to your first question, this question may
arise in two circumstances: first, where the misdemeanant is confined at the time he or she is
The Honorable James M. Kuboviak - Page 8 (JC-0393)
ordered to be confined to discharge fines or costs, but the court, in accordance with article 43.03(b)
of the Code of Criminal Procedure “orders the terms to run consecutively under Article 42.08 of this
code”; and second, where the misdemeanant is not confined when he or she is ordered to pay
multiple fines or costs on which he or she has defaulted.
In either case, the justice’s or judge’s order must comport with article 42.08 of the Code of
Criminal Procedure. Chapter 45 does not provide a procedure that specifically applies to justice and
municipal courts; as a result, in accordance with section 45.002, we look to “other general
provisions” of the Code of Criminal Procedure for appropriate guidance. See TEX. CODE CRIM.
PROC. ANN. 9 45.002 (Vernon Supp. 2001); cJ: Tex. Att’y Gen. Op. No. JC-0246 (2000) at 3.
Section 43.03(b) explicitly points to article 42.08. See TEX. CODECRIM. PROC. ANN. art. 43.03(b)
(Vernon Supp. 2001). Under article 42.08, the court’s order in a case involving multiple defaults
or a default subsequent to a default for which the defendant is already confined should indicate that
the confinements will run consecutively or concurrently. See id. art. 42.08(a).
The Texas Court of Criminal Appeals has provided additional guidance for cumulation
orders. See Exparte San Migel, 973 S.W.2d 310,311 (Tex. Crim. App. 1998) (en bane); Barth v.
State, 708 S.W.2d 460,461 (Tex. Crim. App. 1986) (en bane); Ward v. State, 523 S.W.2d 681,682
(Tex. Crim. App. 1975). The court recommends that a cumulation order contain five elements: (1)
the prior conviction’s trial court number; (2) the correct name of the court where the prior conviction
was taken; (3) the prior conviction’s date; (4) the prior conviction’s term; and (5) the prior
conviction’s nature. See Banks, 708 S.W.2d at 461; accord Exparte San Migel, 973 S.W.2d at 3 11;
Ward, 523 S.W.2d at 682; Hoitt v. State, 30 S.W.3d 670, 674 (Tex. App.-Texarkana 2000, pet.
filed). Moreover, “[a] cumulation order should be sufficiently specific to allow prison officials and
the defendant to identify the prior conviction with which the newer conviction is cumulated.” Hoitt,
30 S.W.3d at 675. Because these recommended elements apply to cumulated sentences, a justice
of the peace or municipal court judge may need to adapt them to a situation in which a
misdemeanant is ordered to cumulative confinements to enforce the discharge of fines or costs.
Finally, you ask whether the time that a class C misdemeanant may have spent in jail prior
to sentencing runs concurrently or consecutively. See Request Letter, supra note 1, at 1. If the time
runs concurrently, then it is applied to each charge for which the defendant is convicted. Assume,
for example, that a defendant who has been convicted of multiple misdemeanor offenses discharges
fines and costs at the rate of $100 “for each day or part of a day of jail time served.” See TEX. CODE
GRIM. PROC.ANN. art. 45.048 (Vernon Supp. 2001). The defendant spends one day in jail prior to
sentencing and is convicted of five class C offenses related to a single traffic stop. For each
conviction, the misdemeanant is sentenced to a $100 fine. If the presentence time is applied as
though it ran concurrently, the defendant has already discharged all five fines by the presentence jail
time. Conversely, if the time runs consecutively, it is applied to the total amount of fines or costs.
Using the same example, the misdemeanant who spent one day in jail prior to being sentenced to pay
a $100 fine for each of five misdemeanor convictions has discharged only $100 of the total $500
in fines. The misdemeanant must discharge the remaining $400 in fines upon sentencing.
The Honorable James M. Kuboviak - Page 9 (JC-0393)
An individual who is convicted of multiple class C misdemeanors and who was confined
before sentencing must be credited upon conviction as though the sentences ran concurrently. A
justice or judge must “credit the defendant for time served in jail” as article 42.03 of the Code of
Criminal Procedure directs. Id. art. 45.041 (c). Under article 42.03, the defendant must be credited
“for the time that the defendant has spent in jail” before the sentencing, “other than confinement
served as a condition of community supervision.” Id. art. 42.03(2)(a). On multiple occasions, the
Texas Court of Criminal Appeals has determined that the defendant receives credit on all sentences
for the period of time the defendant was incarcerated prior to sentencing. See Hannington, 832
S.W.2d at 356; Exparte Bynum, 772 S.W.2d 113, 115-16 (Tex. Crim. App. 1989) (en bane) (per
curiam). In other words, in accordance with Texas Court of Criminal Appeals’ decisions, the
defendant must be credited on each sentence for the time he or she was confined prior to sentencing
as though the time ran concurrently. See Hannington, 832 S.W.2d at 356; Exparte Bynum, 772
S.W.2d at 115-16.
The Honorable James M. Kuboviak - Page 10 (JC-0393)
SUMMARY
A misdemeanant who is confined when a court orders a term
of confinement to enforce the discharge of a fine or costs on a second
conviction serves the confinements concurrently unless the court
orders the terms to be served consecutively under article 42.08 of the
Code of Criminal Procedure. See TEX.CODECFUM.PROC.ANN. arts.
42.08, 43.03(b) (V emon Supp. 2001). On the other hand, if the
misdemeanant is ordered to be confined to enforce the discharge of
multiple fines or costs when he or she is not confined, the
confinements are served consecutively. If fines or costs are
discharged consecutively, the court’s order must indicate that the
confinements will run consecutively. See id. art. 42.08(a). The
court’s order also should contain five elements, which may be
adapted to the circumstances of a confinement to enforce a default:
(1) the prior conviction’s trial court number; (2) the correct name of
the court where the prior conviction was taken; (3) the prior
conviction’s date; (4) the prior conviction’s term; and (5) the prior
conviction’s nature. See Banks v. State, 708 S.W.2d 460,461 (Tex.
Crim. App. 1986) (en bane).
A defendant convicted of multiple class C misdemeanors
receives credit for time spent in confinement prior to sentencing on
each of the sentences as though the time ran concurrently. See
Hannington v. State, 832 S.W.2d 355, 356 (Tex. Crim. App. 1992)
(en bane) (per curiam); Exparte Bynum, 772 S.W.2d 113, 115-16
(Tex. Crim. App. 1989) (en bane) (per curiam).
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
The Honorable James M. Kuboviak - Page 11 (JC-0393)
SUSAN D. GUSKY
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee