Untitled Texas Attorney General Opinion ( 1947 )

E’WICE BbANIEL AUSTIN. TEXAS May 15, 1947 Honorable M. E. Gates, Opinion No. V-201 County Attorney, Walker County, Re: Authority of a sheriff Huntsville,Texas to release a prisoner .. , .when pecuniary judg- "ment is rendered a- .' gainst him and the au- thority of a County. Judge or a Count,yAt- to'rneyto require re- arrest under capias z, ,. #pro fine. Dear Sir: We refer to your letter of April.24, 1947, which reada: "I am asking the opinion of your De- partment, with reference to Article 787, of The Code of.CriminalProcedure, and would appreciate an answsr to thsfollow- ing .questions: ~r*:: .“ aen the Judgment,againstthe De- * fendant in a,Pecuniary'Fine,,.;and~ he .is' nresent; does the Sheriff have the author- 'ityto release him before the fine is 'paid, or is served out as provided in Article f93, in other words is it'manda- tory that the sheriff confine him, until the Judgment is satisfied; either by pay- ment of the Judgment in money, or by pay- ment at labor as provided by Article 793, .CodoCriminal Procedure? II.. wShould the sheriff release a pris- oner,.where a Judgment for a Pecuniary I.. Fini~:?rad not been satisfied,has the '.,_ Hon. 16. E. Gates, Page 2, V-201 County Judge or the County Attoraey authority, to apply to the County Clerk ror a Writ of Capias Pro Fine? III. “Has the County Judge or County Attor- ney.authority to obtain a Caplas Pro,Fine, and is it the mandatory or the Sheriff to ersoute the atie?” The remedies for the enforoementot peoaniary jud@ente in misdemeanor cases are presoribed in Artioles 787 to 793 or Vernon*8 Code or Crimiaal Prooedure. Suoh judgments may be disoharged in the manner presoribed in Artiole 705 of Vernon’s Criminal Prooedare, rhioh IS as roli0w8; nArtiole 78!j5.When the judgment a- gainst a derendant is for a fine and coats he shall be discharged from the same: 1, When the amount thereor haa been full7 paid. 2. When remitted by the proper authority-. 3. When he has zemained im oue- tody ror the time required by law to satisfy the uount thereorD We quote the following from Opinions!! Noa.O-1048 and’04924 rendered by a rormer Attorney General in whioh the pertinent statutory proiisions are reviewed: ~OpiiiionWOJO. o-1043: ‘In view or the provisions of the above set out and designated statutes, it is the opinion or this Department, and you my be 80 advised, that after the plea of guilty or the derindant has been convicted by trial in a misdemeanor ease the arrpsting offioer doer not have authority to give speoial priv- ileges’in the payment of the finestassessed by the ooart in its judgrent.” Hon. M. E. Gates, Page 3, v-201 "Opinion No. o-4924: *This department has repeatedlyheld that the Justice of the Peace has absolutely no authority to release a defendflnt who is finally convicted and a rine assessed against him on the def;ndant'spromise to pay later or on any other promise. We have likewise held repeatedlythat if a Justice were to attempt to make such order the Sheriff or Constable should ignore the order and piece the defendant in jail or on the county i'aRri or other authorized county project for the satisfactionof the fine and costs, unless the defendant.paid the fine and costs. We have likewise repeatedly held that the Eer- lff or Con;;tsbleor other arresting officer. would be :n the position of unlawfully oer- mittina prisoner to esoaoe if they railer. to do t&r duty by not collectingthe fine ~ and costs or by not taking the convicted de-’ fendant in custody."t(Xm '~ phasis added) We are enclosing copies of OpinlibnsWos,.~O-6684 and O-3530 ror your inronnation. In the Opinion No. O-6684 it was held that a peace officer has the duty to see to it.that the judgment is satisfied according to law; and that the sheriff has no authority to.defer a judgment or arrange for its pay- ment in installments. We call attention to the case of Spradley vs. State (error refused) 56 5.X.114, cited in that opinion in which it is held that the sheriff and his bondsmen are responsiblefor the fine and costs, for wilrully refusing to enforce collection. Opinion No. O-3538 also held that arresting officers are not authori?.edto extend credit to defend- ants in order to permit payment of the fine on an in- stallment plan. That opinion further holds-thatif peace officers "turn a defendant loose" after judeplent is rendere,dagainst him, such defendant occunies the status of sn escaped prisoner. !-is. amw We adhere to said opinions on the points in- volved. Answering your questions,we are of the opinion: (a) That the sheriff is not authorized HOB. M. E. Gates, Page 4, TV-201 to release a defendant against whom a pecun- iary judgment has been rendered, when he is present in Court, until suoh judgment is sat- isfied in'one or the methods provided by law; (b) Thst the County Attorney is author- ized to obtain the issuance 01 a capias pro rine ror the capture or a defendantwho has been released by a sheriff without collecting the fine,and costs acCOrdin to the judgment; and, (c) It is mandatory that the sheriff ex- eoute suoh capias pro fine and make return showing how he executed the same. when a peouuiam 'judgmentin a crimlnel case has been rendered'againste defendant who is present in co@, the sheriff is not euthor- ized to release ths defendant until such judg- ment is satiefied by payment of it in money, or by confinementor labor as provfaed in Articles 785 and 793, V.C.C.P., as amended by Acts 1943, 48th Leg., p. 351, oh. 229, sect. 1; ir BOt so satisfied, capias pro tine may issue and the sheriff has the mandatory duty to exeoute the seme. V. C. C. I'.Arts. 705, 787, 788, 789, 790, 792, 793; Spradley vs. State, (errcir re- fuagi3)50 s. w. 114. Terry vs. State, 17 S. W. . Yours very truly, ATTO~GBNBBAL OF TEXAS *rY$l> wTw:egt:jrb ATTOBNEY GFXBRAL OF.TEXA.3