Untitled Texas Attorney General Opinion ( 1950 )

AUSTIN. TEXAS
April 4, 1950
Bon. Robert Callaway 0pZnion Ho. v-1031
DlstrLot AttolWy
Borger, Texas Re: conourTent or oonseau-
tire credit for jell
time in serving out
peounlary rh33 aa-
sessed in two or mora
misdemeanoP convlo-
Dear sirs tions 0
we refer to your reoent request in which you
submit the folloting questions:
"1 . Where D, defendant, is convioted of two
or moM misdemeanors at the same time, and
the penalty assessed for each is a peounlarg
fine, and where D is confined Ln jail in de-
fault of paynient of fines, is D entitled to
$3.00 per day on each fine, or must he serve
out the fLnes conseoutlvely?
"2. If D Is oomioted on oonseautive days
would th@ result be any different. in view
&f Rx Parte Herrod, 175 8.H. (2d) 571"
We quote the following APtioles from Vemiorils
Code of Criminal Procedure whfch em pertfnent to your
inqutry 0
"783. As to Fine. - When the defendant
is only fined, the judgment shall be that the
State of 9!exas reoover of the defendant, the
amount of such fine and all costs of the pro-
secutiond and that the defendant, if present
abe committed to jail until sucmhfine and costs
are paid; or if the defendant be not present,
that a capias forthwith issue, commanding the
sheriff to arrest the defendant and commit him
to jail until such fine and costs are pazd;
also, that execution may Issue against the
property of such defendant for the amount of
such fine and costs.
Ron. Robert Cellaway, page 2 (v-1031)
"785 T Discharging Judgment for Fin&. -
When $he judgment against. a defendant Is for
a fina and costs he shall bs discharged from
the sY . When the amount thereof has been
fully paid .
"2. pyn remitted by the proper author-
n3. Uhe; he has remained in custody f&r
the time required by law to satis-
the amount thereof.
"787. Pay OP Jail. - When a judgment has
been rendered agatnst a defendant for a peoim-
iary fine, if he is present, he shall be lmprl-
;o$ed in jail until discharged as provided by
. A certified copy of such judgment shall
be sufrricient to authotize such hprisoment.
"793. Fine Discharged. - When a defeiid-
ant ,ls c?nvFcted of a misdemeanor and his pi@-
ishment is assessed at a petunia
z sf:$d;:dhe
iS untible to pay the fine atid, COQ
against him, he sag for such time as will~bat-
isfy the judgment be put to work in the work-
house, or’ on then county .farm, or ‘p,ubl%o lm-
proveinents of the county, as @*ovided in the
sucoeeding article; or if there b% no such
workhouse, farm or improvemsnts, he shell be
imprisoned in jail for a sufficient length of
time to discharge the full amount of fina and
costs adjudged against him* rating such labor
or Imprisonment at Three (63.00) Dollars for
each day thereof; provided, however, that the
defendant may pay the pecuniary fine assessed
against hLm at any time while he is serving 8t
work in the workhouse, or on ths coo&y farm,
or on the public Improvements of the county,
or while he is serving his jell sentence, and
in such Instances he shall be entitled to a
credit of Three ($3.00) Dollars foi. each day
op fraction of a day that he has served and
he shall only bs required to pay the balance
of the pecuniary fine assessed against him.”
“797 * Discharge of Defendant, - A defend-
ant who has remained in jail the len&th of time
required by the judgment shall be discharged.
me sheWrr shall return the copy of the juds-
ment, 0~ ths aapias undef. which the defendant
Eon. Robert Callaway, page 3 (V-1031)
was imprisoned, to the proper court, stating
how it was exe,cuted .”
In Ez a e Benti 41 Tex,Drlm. 201, 53 s.u.688
(18991, it ia - s, a e :
“This is an original proceeding in habeas
corpus. The applicant alleges the t he la
illegally restrained of hla liberty by the su-
perintendent of the county oonvlof ianr. The
facts a Feed upon show thathe was fined in
two nils,!iemeanor cases. The trial and oonvic-
in the justice court was In
assessed was a
amounting to $57.43;
$ich made the total of fine and costs $107.-
. In August following, applicant was tried
in the county ooUFt, a@ convicted of a’misde-
meanor. The fine assessed against hl.m was $grt,
and the costs7were $50~90, - the total being
$100.90; and in addition, imprisonment in the
county jail for 24 hours was assessed againsf,
him. These were separate cases, end the judg-
ment lo the last aase did not refer to the ror-
lter. Applicant, Ln oPder to pay the fLne and
costs in said two asses, aggregating $208.83,
was placqc on the county conflat or poor farm
0s w00d q0mg. Re alleges, and it is agreed,
that he has labormd on said term 324 days; that
he was sick, and unable to work, 25 days; and
that he did not do any labor on said farm for
47 days, - 45 of mme being on Sunday; that~
396 days have elapsed since applicant has been
on.sald convict raw. Applicant a ontends that
said, judgmnta were not oumuletive, and that
he had been imprlroned dn the first case 24
hours, and had been hired on the county few
a sufficient length of time to pay off the
fine and costs in fhe first case, and that ho
was entitled to hlr discharge, lrbgatiless of
the SLne and costs in the subsequent case.
“The statute iwgulating oumlative sen-
tenees refers only to cases in which imprison-
ment In the penitentiary of the oounty jail 1s
a part of the punishment (Code Cr. Proo. art.
8&O); and It has been held this srtlcle refers
-,
as well to misdemeanors as to feloties (Ex
parte cox, 29 White & W. 84, 14 8. W. 396; RX
-.
Hon. Robert Callaway, page 4 ,(v-1031),
parte Betea (TexSr.App:) 40 S.Y. 269). A
reference to said article will ahow that Lt
has no reference to the DecuUary fines, but
to otdPuiativ& pnnibhnwnts. In such o8aes it
whs held, wheti the punishment we8 imprisod-
ment, that the ‘terms of punishment, when the
senw, defendant was convicted in two or mom
cases, ran oonourrent with each other. We
are not advised ~of any case where the same
rule was held applicable to pecuntalrg fines.
In such cases the fities were independent of
each other, and the payment of bne was not a
satlsfaotion of the other.” (Lmphaslr added)
In view of the foregoing it is our opinlbn that
where a defendant is convicted. of two or more misdemeancz%
at the same time, and the penalty assessed is ~8 pecuniary
fins; and the defendant Is oon.Mwd in jail in default of
payment of asid fines, he must serve out the time conse- -
cutively. The rule would be the same If the defendant Is
convicted of two or more misdemeanors on the same day or
on oonseoutive days.
Article 774, V.C .C .P., provides :
“When the same defendant has been con-
victed in two or more cases, and the punish-
ment assessed in eaoh case is confinement In
the penitentiaryor the jail for a term of
imprisonment, judgment and sentence shall be
pronounced Ln each base in the same manner as
if there had been but one aonviction, except
that in ths discretion of the couzt, the judg-
metit in the second and subsequent oonviotions
may either be that the punishment shall begin
when the judgment aui sentence in the preced-
ing conviction has oeaaed to operate, or that
the punishment shall run concurrently with the
other case or cases, and sentence and execu-
tion shall be accordingly.*
It is apparent that the above statute is appll-
oable only to cases where the punishment assessed is lm-
prisonment in the penitetitisry or jail and has n o ap-
lication whatever to cases where only pecuniary fines
have been assessed. Ex pa&e Banks, supra.
,
/--
Ron. Robert Cellaway, page ,5 (V-1031)
He are in eooord with your'opiniaathattlm case
of Rx p&pte’Rerrod is distinguishable from this case by
the fact th t the oonvbd there was not Only assessed
fine but alio a jili~senteaoe.
SUMMARY
If a defendant is convicted of two OP
more misdemeanors at the same time, the
penalty assessed is .a pectiary fine, and
the’defendant is odnfined in jail in default
of payment of such fines, he must serve out
the time consecutively.
only to cases
is lmprlson-
ment ih the penitentiary or the j.eil, and
the Wale would be the same even thou& such
mlidemeanor o onvlc tions were on a onset utive
days.
Yolurs very truly,
PRIGR‘DAEIXL
APPROVED
: Attorney General
J. C. Davis, Jr.
county Arra~rs Division
Charles D. lsthews
Rxec,+ive Assistant Assistant
BA:mw