Untitled Texas Attorney General Opinion ( 1947 )

I
R-657
THti ,!i NERAL
OFTEXAS
Hona Howard Traweok ODinion No. P-322
County Attorney
Motley county Re: Liability of a defendant,
Matador, Texas upon final conv!ction in
a Justice Ceart, for pay-
ment of commitment or re-
lease fee, or both suoh
fehs.
Dear Sir:
We refer to your letter of July 11, 1947, in
trrhioh
yam ask:
“Ia the sheriff entitled to the statutory
fee for commitment or/and release In a
justice oourt case where the defendant Is
not actually committed to jrll? In such
case the defendant is arrested by the sher-
iff and by him taken before #a, XV&+&%% of
t‘nePeace who assesses a fine upon a plea
of guilty and then allowed the defendant
time in which to pay the fine, said arrange-‘
ment being agreed to by the officer. Would
the fact that the defendant should Day the
Sine to the sheriff at the time of assess-
ment and receive a receipt therefor make
any differenae in regard to Nhe oiriaor*s
feesP
Your first question presents a case in which
the sheriff arrested the defendant and took him to just-
ice court where a pecuniary judeent of convic,tionwas
rendered against him; the justice of the peace, by agree-
ment with the sheriff, allowed the defendant tfme in
which to pay the judgment. Your second question presents
a case In whfch the fine is paid to the sheriff at the
time a peauniary judgment is entered,
We are of the opinion that the Sheriff is,not
entitled to a fee for ~commltment” of a defendant unless
such defendant is confined in jail; and he is not entit-
led to a fee for giving the defendant time in which to
,
Han, Howard Traweek, Page 2, V-322
pay the judgment, But he is entitled to racefve one dol-
lar for final "release" of such a defendant from his cus-
tody in either case submitted by you upon payment of the
judgment in full if the sheriff had custody of the defen-
dant,
Article 917, V.C.C,P,, reads:
"The judgment, in case of convfctisn in a
criminal action before a justice of the
peace, shall be that the State of Texas
recover of the defendant the fine and
costs, and that the defendant remain in
custody of the sheriff until the fine and
costs are paid; and that execution issue
to collect the same,"
Article 787, V.C.C,P., reads:
"When a judgment has been rendered
against a defendant for a pecunfary fine,
if he is present, he shall be imprisoned
in jail until discharged as provided by
law, A certified copy of such judgment
shall be sufficient to authorize such im-
prisonment."
Article 783, V.C.C.P., reads in part:
"When the defendant is only fined
the judqnent shall be that the State of
Texas recover of the defendant the amount
of such fine and all costs of the prose-
cution, and that the defendant, if present,
be committed to jail until such ffna and
costs are paid; a D oR
Article 1065, V.C.C.P,, fixes the fees of the
sheriff or other peace rfficers fm misdemeanor cases;
paragraph 5 reads: "For each commitment or releaee,ene
dollar."
That means one dollar for each *commitment"
and one dollar for each "release". When the sheriff a-
greed to give the defendant time in which to pay the
pecuniary judgment for the fine and costs, he and his
bondsmen became responsible for the judgment. Spradley~
vs. State, 56 S. 1. 114, writ refused. The sole respon-
sibility was his. The action of the justice of the peace
Hon. Howard Traweek, Page 3, V-322
is immaterial because such officer is not authorized to
take the defendant from the custody of the sheriff, or,
grant time in which to pay a pecuniary judgment for a
fine and costs. The defendant was not "committed" to
jail; was he "released", when the fine and costs were
paid?
In Ex Parte Griffis, 145 S.W, (2d) 192, the
Court of Criminal Appeals construed the word "released"
as used in Article 1065, V.C.C,P* and said:
"As we understand the statute the
'release' for which the sheriff or con-
stable may have the item of one dollar
charged against an accused is the 're-
lease' from the judgment directing that
he remain in the officer's custody un-
til the fine and costs are paid."
Attorney General's Opinion No. O-693 (which
is conference opinion No. 3058, rendered in 1939) reads
as follows:
"On February 13, 1928, this de-
partment held in a conference opinion
written by Hon. H. Grady Chandler and Han,
Galloway Calhoun, Assistant Attorneys Gen-
eral, that a release for which a peace of-
ficer is allowed a fee of one dollar is
for releasing or discharging a defendant
,.from the force and effect of a judgment;
and the fee is allowed in all cases wlmre
a defendant is convicted and discharged
his fine and costs, whether under a plea
of guilty or not guilty, We quote from
this opinion as follows:
"'The term "release" must be con-
strued according to its ordinary meaning.
Webster's Dictionary defined release as
follows:
"'To let loose again; to set free
from restraint; to give liberty to or set
at liberty; to let go.'
"'The dictionary also gives the word
"discharge" as a synonym for "releaseuO
Hon. Howard Trezeek, Page 4, V-322
11 t :! ,‘.-,
0” the Coc?e3’;’
i
,Criminal
p, ‘1. c, .L
I7
Procedure, as heretofore stated, provides
that the judgment of the Justice court shall
recite that the defendant is to remain in
custody of the sheriff until the fine end
costs a re paid. Articles 785, 787 and 792
provide for enforcing a judgment in all mis-
demeanor cases and make provisions for dis-
charging the defendantu The term “release”,
therefore, as used in the fee bill and as
defined in the dictionary, we believe is the
same as “discharge” and the officer who dis-
charges or releases a defendant from the
force and effect of a judgment restraining
him is entitled to collect the fee of $1000
for a release. As the judgment is the same
in all cases of conviction, whether under a
plea of guilty or a plea of not guilty, it
follows) therefore, in every case an officer
is entitled to a fee of #lQOO for a release.
But a fee is not allowed for a commitment in
every case unless the court is required to
commit the defendant to jail in default of
payment of the fine and costs or in the coup-
ty court, the defendant might be committea
to serve a jail sentence even though the
fine and costs are paid.’
*It appears that this conference opia-
ion has been followed by this department for
more than eleven years; we are unable to
find any authority to the contrary; the op-
inion appears to be based upon sound reason-
ing; we therefore, approve and follow this
opinion,
“You are therefore respectfully advised
that it is the opinion of this department that
a charge of one dollar for release is a proper
charge to be taxed as costs against the de-
fendant when a plea of guilty is entered and
the fine paid immediately after the defendant
isnotified of the amount and no commitment
iS,made, and that the officer who discharges
o.rreleases a defendant from the force and
effect of a judgment restraining him is en-
titled to collect the fee of one dollar for
a release.”
.
Hon. Howard Traweek, Page 5,``V-322
'We adhere to the opinion O-093 and enclose a
copy thereof ror your information.
Where a pocluiary judpmt for a rm
and ooets, is rendered mgainst a derendant
who is present in court, the sheriff is en-
titled to receivs one dollar under the p-0
vieions of Article 1045,, B.C.C.I., ror final
release of the derendant from his custody
when suoh judgment is paid in full, whether
6uoh judC;ment be paid at the time 9f it8 6R-
try or at a later date. The Sheriff ia not
entitled to receive a fee f&r wconrmitmentw
in such case unless the defendant is confined
la jail. Art. 1065 V.C.O.P.; EX Part0 Orlfffa,
145 S.W. (2d) 192; Attorney General's Opiaien
Iio.O-693.
Yours very truly
ATTORNEY OENERAL OFTEXAS
Assistant
AOTIIG ATTORNEY GENERAL
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