Untitled Texas Attorney General Opinion ( 1963 )

I"~EATTOIENEY GENERAL
OF TEXAS
AUSTIN 1s.TwAe
September 19, 1963
Honorable Joe Resweber Opinion No. C-144
County Attorney
Harris County Courthouse Re: Construing H. B. 413, 58th
Harris County Leg. relating to court costs
Houston, Texas in the Commutation of Time
and Other Privileges Granted
Inmates of the County Jail
Dear Mr. Resweber: for Good Conduct
Your letter requested an opinion from this office construing
H. B. 413, enacted into law by the 58th Leg., R. S., 1963, Ch. 371, Page
943, as Article 51180, Vernon’s Civil Statutes. Your question was:
“Does this Act apply to or include court
costs where the judgment of conviction is for
the payment of a fine and court costs?”
Article 5118a, as amended reads as follows:
“Section 1. In order to encourage, county
jail discipline, a distinction may be made in the . -..,.
terms of prisoner8 so as to~extend to all such as
are orderly, industrious and obedient, comforts
and privileges according to their deserts; the re-
ward~to be bestowed on prisoners for good con-
duct shall consist of such relaxation of strict
county jail rules, and extension of social privileges
an may be consistent with proper discipline. Com-
mutation 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 (l/3) of the original sen-
tence may be made from the term or terms of aen-
tences when no charge of misconduct has been sus-
tained againrt the prisoner. This Act shall be
applicable regardlese of whether the judgment of con-
viction is a fine or jail sentence, or a combination of
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Honorable Joe Resweber, Page 2 (No. C-144)
jail sentence and fine. A prisoner under two (2)
or more cumulative senten 1es 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 prisoner (including es-
cape or attempt to escape) any part or all of the
commutation which shall have accrued in favor of
the prisoner to the date of said misconduct may be
forfeited and taken away by the sheriff. No other
time allowance or credits in addition to the commu-
tation of time for good conduct herein provided for
may’be deducted from the term or terms of sen-
tences. The sheriff shall keep or cause to be kept
a conduct record in card or ledger form and a
calendar card on each inmate showing all forfeitures
of commutation time and the reasons therefor.
“Section 2, All laws or parts of laws in con-
flict with the provisions of this Act-are hereby re-
pealed.
i
“Section 3. . . . .
“Section 4. The fact that the Attorney General
of the State of Texas’ in Opinion No. WW-1326, dated
May 2, 1962, ruled that the present Act does not em-
power the sheriff to grant commutation of sentence
for good conduct to a county jail prisoner who is serv-
ing time in jail in lieu of payment of a fine, thus work-
ing an injustice and inequity against such prisoners
who may be deserving of consideration because of
orderly, obedient and industrious conduct, creates an
emergency and an.imperative public necessity.that
the Constitutional Rule requiring bills to be read on
three several days in each House be suspended, and
said Rule ia hereby suspended, and that this Act shall
take effect and be in force from and after its passage,
and it is so enacted.”
Article 783, Vernon’s Code of Criminal Procedure, reads in
part as followa:
“When the d,efendant is only fined the ,judg-
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Honorable Joe Resweber, Page 3 (No. C-144)
ment shall be that the State of Texas recover of
the defendant the amount of such fine and all costs
of the prosecution, and that the defendant, if pre-
sent, be committed to jail until such fine and costs
are paid; . . . . ” (Emphasis supplied)
Article 784, Vernon’s Code of Criminal Procedure, reads as
follows :
“If the punishment is any other than a fine,
the judgment shall specify it, and order it enforced
by the proper proress. It shall also adjudge the
costs against, the defendant, and order the collec-
tion thereof ao in other cases.”
Article 785, Vernon’s Code of Criminal Procedure, reads as
follows:
“When the judgment against a defendant is
for a fine and cos,ts ,he shall be discharged from
the same:
“1. When the amount thereof has been fully,
paid.
“2. When remitted by the proper authority.
“3. When he has remained in custody for
the time required by law to satisfy the
amount thereof.” (Emphasis supplied)
In Ex Parte Mann, 46 S.W. 828 (Tex. Crim.;l898), the Court
said:
“The whole the’ory of the law in Texas with
reference to the enforcement of fines in misde-
meanor convictions, includes costs as a part and
parcel of the judgment.” (Emphasis supplied)
And Tex. Jur. 2d, Vol. 25, Payment of Coots, Section 12, Page
333, reads as follows:
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Honorable Joe Resweber, Page 4 (No. C-144)
“Costs assigned against a Defendant
must be satisfied before the Defendant can
be discharged from a judgment’for a’fine.
This is also true of a judgment of a,justice
court. The enforcement of fines in misde-
meanor convictions includes costs as a
part of a judgment and rhe convict is not
entitled to release from custody until he
has satisfied both fine and costs.”
.
(Emphasis supplied)
The 58th Legislature clearly expressed their reasons for, the
intents and purposes of, and the objective desired in amending Article
5118a Vernon’s Civil Statutes. .They were definitely in a beneficent mood
and were determined to restore clemency benefits to a certain class of
jail .inmatis who had ,been deprived, of the same by Attorney General’s
Opinion No. WW-1326, 1962, which in our opinion was the correct interpre-
tation of the law as then written.
Your question and.,request for an opinion on amended Article
5118a sterna from the language used by the Legislature contained in Set-
tion 1 thereof, or to be more accurate and specific, you are concerned
about the omission of certain words fram the pertinent 3rd sentence of
Section 1, which reads:
“This Act shall be applicable regardless of
whether the judgment of conviction is a fine or
jail sentence or a combination of jail sentence and
fine.”
The omission from the above. of the usual words “court costs”
or ‘“costs” ‘which have heretofore beerr ueed .consistently in provisions
or decisions relating to penalties of fines or jail sentences does pose a
question. However, the error appears inconsequential in view of the well-
grounded law covering this wubject.
Statutory laws, court decisions and other authorities either de-
clare or subscribe to the principle of law that in a’judgment of convic-
-tion for a misdemeanor offense carrying a penalty of a fine or jail term
sentence that “court costs” are part and parcel of,such judgment, and
that in the enforcement thereof, the total sum of the fine and costs therein,
or the total length of the jail term sentence and costs are considered as
a whole to be satisfied before a discharge or release from same is in or-
der. Therefore, we hold that this Act does apply to and include “court
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Honorable Joe Resweber, Page 5 (No. C-144)
costs” where a judgment of conviction is for the payment of a fine and
court costs.
SUMMARY
Article 5118a, Vernon’s Civil Statutes, as amended
authorizes county sheriffs to award prisoners the
commutation of time up to one-third (l/3) of the
original sentence for good conduct, industry, and
obedience and makes same applicable regardless
of whether the judgment of conviction is a fine or
jail sentence, or a combination of jail sentence or
fine. This Act does apply to and include court
costs where the judgment of conviction is for the
payment of a fine and court costs.
Yours very truly,
.
WAGGONER CARR
Attorney General of Texas
BY
Edward R. Moffet
Assistant Attorney General
ERM:nf
APPROVED:
OPINION COMMITTEE
W. V. Geppsrt, Chairman
Linward Shivers
Brady Coleman
Ben Harrison
Pat Bailey
APPROVEDFOR THEATTORNEYGENERAL
BY: Stanton Stone
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