Untitled Texas Attorney General Opinion ( 2000 )

OFFICE
OFTHEATTORNEY
GENERAL.
STATE
OFnx*r
JOHN CORNYN
July 7,200O
The Honorable Charles D. Penick Opinion No. JC-0246
Criminal District Attorney
Bastrop County Re: Amount of credit for time served in a county
804 Pecan Street jail for failure to pay a tine assessed for a Class C
Bastrop, Texas 78602 misdemeanor (RQ-0184-JC)
Dear Mr. Penick:
You have requested our opinion regarding the amount of credit that should be awarded to a
convicted defendant for time served in a county jail for failure to pay a tine assessed for a Class C
misdemeanor. Pursuant to article 45.048 of the Code of Criminal Procedure, we conclude that a
defendant should be credited at the rate of not less than $100 per day for each day or part of a day
served in jail.
You indicate that, in accordance with article 43.09 of the Code of Criminal Procedure, the
Bastrop County Jail is “crediting to all inmates convicted of a crime who fail to pay their fine an
amount of only $50 per day. This policy includes those inmates convicted of Class C
Misdemeanors.” Letter from Honorable Charles D. Penick, Bastrop County Criminal District
Attorney, to Office ofthe Attorney General, Opinion Committee (Feb. 4,200O) (on tile with Opinion
Committee). The issue you pose is whether article 43.09 is the statute that applies to persons
convicted of Class C misdemeanors, in light of article 45.048 of the Code of Criminal Procedure,
which is specifically applicable to persons convicted in justice and municipal courts.
Chapter 43 of the Code of Criminal Procedure constitutes the general law applicable to
“execution ofjudgment” in criminal cases, Article 43.09(a) provides, in relevant part:
When a defendant is convicted of a misdemeanor and his
punishment is assessed at a pecuniary tine or is confined in a jail after
conviction of a felony for which a fine is imposed, if he is unable to
pay the fine and costs adjudged against him, he may for such time as
will satisfy the judgment be put to work in the county jail industries
program, in the workhouse, or on the county farm,~ or public
improvements and maintenance projects of the county or a political
subdivision located in whole or in part in the county, as provided in
the succeeding article; or if there be no such county jail industries
program, workhouse, farm, or improvements and maintenance
The Honorable Charles D. Penick Page 2 (JC-0246)
projects, he shall be confined in jailfor a suf$cient length of time to
discharge the full amount offine and costs adjudged against him;
rating such confinement at $50 for each day and rating such labor at
$50 for each day.
TEX. CODE GRIM. PROC. ANN. art. 43.09(a) (Vernon Supp. 2000) (emphasis added). In addition,
article 43.09 confers broad discretion on the sentencing court to, for example, “grant an additional
two days credit for each day served to any inmate participating in an approved work program. or
a rehabilitation, restitution, or education program,” and “to discharge all or part of the fine or costs
by performing community service” at the rate of $100 for each eight hours of service. Id. art.
43.09(d), (f), (k). Section (a) was last amended in 1993r and subsection(k) was amended in 1999
to increase the credit for eight hours of community service from $50 to $lOO.*
Your inquiry focuses on Class C misdemeanors. A Class C misdemeanor is one in which
the maximum permissible punishment is a tine not to exceed $500, and it is not punishable by
confinement. See TEX. PEN. CODE ANN. 5 12.23 (Vernon 1994). Justice courts have original
jurisdiction in criminal cases in which the punishment is by a fine or other sanction that does not
include confinement. See TEX. CODE GRIM. PROC. ANN. art. 4.11 (Vernon Supp. 2000). A
municipal court has “exclusive original jurisdiction within the territorial limits of the municipality
in all criminal cases” punishable by tine only, with the maximum tine not to exceed $500, or in
certain cases, $2000. Id. art. 4.14. County courts do not have jurisdiction in any case in which the
fine to be imposed does not exceed $500. See id. art. 4.07. Thus, only justice and municipal courts
have jurisdiction of Class C misdemeanors.
Chapter 45 ofthe Code of Criminal Procedure deals exclusively with “justice and municipal
courts.” Article 45.002 thereof declares:
Criminal proceedings in the justice and municipal courts shall
be conducted in accordance with this chapter, including any other
rules ofprocedure specifically made applicable to those proceedings
by this chapter. If this chapter does not provide a rule of procedure
governing any aspect of a case, the justice or judge shall apply the
other general provisions of this code to the extent necessary to
achieve the objectives of this chapter.
Id. art. 45.002 (emphasis added). Chapter 45 was extensively rewritten in 1999, and many previous
provisions were renumbered as well as amended.r Former article 45.53 was redesignated as article
‘See Act of May 20, 1993,73d Leg., RX, ch. 578,§ 2, 1993 Tex. Gen. Laws 2188,2189
‘See Act ofMay 30, 1999,76th Leg., R.S., ch. 1545, $3,1999 Tex. Gen. Laws 5314
‘See id. 5 6, at 5315
The Honorable Charles D. Penick - Page 3 (JC-0246)
45.04@ and amended to increase the credit for time served from $15 per day to “not less than” $100
per day:
A defendant placed in jail on account of failure to pay the tine
and costs shall be discharged on habeas corpus by showing that the
defendant:
(1) is too poor to pay the fine and costs; or
(2) has remained in jail a sufficient length of time to satisfy
the fine and costs, at the rate ofnot less than $100 for each day or part
of a day ofjail time served.
TEX. CODE CFUM. PROC. ANN. art. 45.048 (Vernon Supp. 2000). Likewise, the credit in justice and
municipal court for eight hours of community service was increased from $50 to $100. Id. art.
45.049.
When a statute makes a general provision that is apparently applicable to all criminal cases
and another statute makes a different provision for particular cases, the latter prevails insofar as the
particular case or class is concerned. See Magnolia Fruit & Produce Co., Inc. Y. Unicopy Corp. of
Tex., 649 S.W.2d 794,797 (Tex. App.-Tyler 1983, writ dism’d); White Y. Sturns, 651 S.W.2d 372,
374 (Tex. App.-Austin 1983, writ ref d n.r.e.).
In the situation you pose, the amount of credit to be awarded for jail time served as a result
of a proceeding in a justice or municipal court is the more specific provision. Because article 45.002
makes chapter 45 applicable to proceedings in justice and municipal courts to the exclusion of other
provisions (particularly article 43.09), it is clear that article 45.048 is the statute to be applied to
determine the amount of credit to be awarded to a defendant convicted of a Class C misdemeanor
for time served in a county jail. Thus, in answer to your specific question, a defendant who is
sentenced to county jail for failure to pay a tine assessed as a result of conviction for a Class C
misdemeanor should be credited at a rate of not less than $100 for each day or part of a day served
in jail.
‘See id. 5 48, at 5323.
The Honorable Charles D. Penick - Page 4 (JC-0246)
SUMMARY
A defendant who is sentenced to county jail for failure to pay a
tine assessed as a result of conviction for a Class C misdemeanor
should be credited at a rate of not less than $100 for each day or part
of a day served in jail.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee