Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
December 29, 1983
JIM MATTOX
Attorney General
Supreme Court Building Honorable Henry Wade Opinion No. JM-107
P. 0. BOX 12548 Criminal District Attorney
Austin, TX. 78711.2548
5121475-2501
Dallas County Government Center Re: Crediting jail time toward
Telex 910/874-1357 Dallas, Texas 75202 misdemeanor fine and costs
Telecopier 512/475-0206 where prisoner is serving more
than one jail sentence
714 Jackson, Suite 700
Dallas, TX. 75202.4506 Dear Mr. Wade:
2141742-8944
You have requested this office's assistance in determining the
proper method of computing jail time in certain cases. In particular,
4824 Alberta Ave., Suite 160
you seek answers to the following questions:
El Paso, TX. 79905.2793
91515333484
(1) when two misdemeanor sentences are
pronounced against a defendant on the same day,
“‘001 Texas, Suite 700 one committing the defendant for non-payment of
tfouston, TX. 77002-3111 fine and costs, the other to serve a jail term, do
713/223-5886
they run concurrently or consecutively?
806 Broadway, Suite 312 (2) May a jail sentence of 72 hours be treated
Lubbock. TX. 79401.3479 like a sentence of three days?
806,747-5238
For reasons which are to follow, we conclude that, under the
4309 N. Tenth. Suite E
circumstances presented by your request, the two misdemeanors run
McAllen, TX. 78501-1685 consecutively. Additionally, we conclude that a sentence of 72 hours
5121682-4547 requires that the jailed individual be released upon the expiration of
the 72 hour period or as close to that time as is practicable.
200 Main Plaza. Suite 400
San Antonio, TX. 78205.2797 A defendant sentenced in two or more cases to a term of
51212254191 imprisonment may, in the sentencing court's discretion, serve the
terms concurrently or consecutively. Code Crim. Proc. art. 42.08.
However, unless the court specifically orders the terms served
An Equal Opportunity/
cumulatively, the defendant serves them concurrently. Ex parte Bates,
Affirmative Action Employer
538 S.W.2d 790 (Tex. Crim. App. 1976). Misdemeanors may be cumulated
under article 42.08, but only where the punishment is confinement and
not fines. Ex parte Banks, 53 S.W. 688 (Tex. Crim. App. 1899)
(discussing former Code of Criminal Procedure article 774). Fines
imposed in two or more misdemeanors are not made concurrent when
converted to imprisonment -- they remain separate judgments to be
discharged cumulatively. Ex parte Minjares, 582 S.W.2d 105 (Tex.
,- Crim. App. 1979) (en bane); Ex parte Hall, 258 S.W.2d 806 (Tex. Crim.
APP. 1953) (pecuniary fines in seven cases are not discharged
concurrently by satisfaction of fine and costs in one of the seven
p. 448
Honorable Henry Wade - Page 2 (JM-107)
-,
judgments); Attorney General Opinions C-467 (1965) (a prisoner
convicted and fined in more than one misdemeanor case is not entitled
to receive credit on each case simultaneously at the rate of $3.00 per
day) ; V-1031 (1950) (defendant convicted of two or more misdemeanors
at the same time and assessed fines in each case must serve them out
consecutively when imprisoned in default of payment); O-5046 (1943)
(defendant punished by fines for two or more misdemeanors may not
satisfy them concurrently).
Judgments for fines and costs may be discharged either by
payment, remission to proper authorities, or confinement in jail for a
period long enough to satisfy the judgment but not to exceed the
maximum term authorized for the offense for which the defendant was
originally convicted. Code Grim. Proc. arts. 43.01 and 43.03;
Attorney General Opinion M-58 (1967) (sheriff may release prisoner
unable to pay fines after prisoner has spent requisite amount of time
in jail necessary to discharge fines at the rate of $5.00 per day).
Under article 43.09, fines are discharged at the rate of 15 dollars
for each day of imprisonment. Fines and jail terms, however, are
generally treated as different species of punishment. Thus,
punishment in any single case which imposes both a jail term and a
fine may not be satisfied merely by serving out the term of
imprisonment alone. Ex paste Dockery, 42 S.W. 599 (Tex. Crim. App. ?
1897) (the law contemplates that a defendant who is unable to pay
fines and costs after imprisonment be put to work or in jail until
fines and costs are discharged). The cases and opinions cited have
dealt primarily with the problemsof single sentences involving mixed
punishment (jail term and fines) or multiple sentences involving a
single typ= of punishment (jail term " fines). Your request
envisions a situation barely discussed by the authorities: multiple
sentences involving fines, costs, and jail terms.
A review of the relevant authorities reveals few direct comments
on the situation just described. Attorney General Opinion O-5046
(1943) answered the question of a judge's discretion in imposing
concurrent misdemeanor sentences. After addressing this issue at
length, the opinion, in its last sentence, concludes that
if in one case the defendant is merely fined while
in another his punishment is imprisonment, the
satisfaction may not be concurrently accomplished.
See Ex parte Williams, 1109 S.W.2d 171 (Tex. Crim.
App. 1937)].
In Williams, a confinement in lieu of payment of a fine for a
misdemeanor was interrupted by a felony conviction and imprisonment.
Upon release from the penitentiary, Williams was jailed to discharge
the remainder of the fine. The Commission of Appeals, in an opinion
adopted by the Court of Criminal Appeals. held that both terms were
not concurrently satisfied. This case involved cumulation of felony
p. 449
Honorable Henry Wade - Page 3 (JM-107)
and misdemeanor sentences, a practice not prohibited by article'42.08.
McClure v. State, 496 S.W.2d 588 (Tex. Crim. App. 1973).
You direct our attention to Ex parte Herrod, 175 S.W.2d 87 (Tex.
Crim. App. 1943). which deals with a jail-fine combination for two or
more misdemeanors. In Herrod the court held that confinement in jail
in default of payment of a fine followed by other misdemeanor
convictions for jail terms only would not become cumulative. The
appellate court noted that the sentencing court failed to make the
subsequent misdemeanor sentences cumulative with the confinement for
the fine. See Ex parte Bates, supra. The Court of Criminal Appeals
also observx that at the time of the subsequent misdemeanor
convictions, Herrod was discharging the previously imposed fine. The
court explicitly rejected Williams, claiming that the distinction
between that case and the one before it was that the second conviction
in Williams was for a felony which required confinement in the state
penitentiary and could not satisfy the misdemeanor conviction, which
could only be served where it had commenced. Finally, the court
concluded that, since Herrod received several non-cumulated
convictions of the same class (misdemeanors) and was confined in the
same facility after imposition of the later sentences, the subsequent
terms were concurrent with the first. The court relied on Ex parte
Lawson, 266 S.W. 1101 (Tex. Crim. App. 1924), which held that a state
felony sentence ran concurrently with a previously pronounced federal
felony sentence when the defendant was returned to the federal prison
rather than sent to the state penitentiary.
The Herrod decision is consistent with the general rule
prohibiting the satisfaction of sentences in installments. -- See Ex
parte Morris, 626 S.W.2d 754 (Tex. Crim. App. 1982). Some reasons for
the prohibition are given in Ex parte Morgan, 262 S.W.2d 728, 731
(Tex. Crim. App. 1953). The Morgan court stated that such a
prohibition was necessary because a contrary rule
(1) would require one who had requested no
relief, but who had been told to leave his place
of confinement by those who confined him, to
refuse to leave and demand that he be allowed to
finish serving his sentence at that time in order
to ever be free from the clutches of the law.
Such conduct on the part of a prisoner would be
inconsistent with human nature as we know it. (2)
It would place in the hands of those charged with
enforcing the law the power to keep a prisoner in
a form of peonage by requiring him to serve his
sentence at whatever times and for such length of
time as the whim of the officer might dictate.
Despite the logical infirmity upon which you claim Herrod rests, the
case nonetheless stands for the proposition that if two or more
sentences of the same classification are imposed on different days
p. 450
Honorable Henry Wade - Page 4 (JM-107)
(and not expressly made cumulative) and the defendant is returned to
the facility in which he began to serve the first sentence. the
subsequent sentences run upon his return to that facility. Cf. go
parte Voelkel, 517 S.W.2d 291 (Tex. Grim. App. 1975); Henson v.
State, 638 S.W.2d 504 (Tex. Civ. App. - Houston (1st Dist.] 1981. no
writ). With this in mind, we observe that your inquiry concerns
several sentences imposed on the same day; we do not. therefore, find
Ex parte Herrod determinative of the question posed by your request.
The foregoing discussion may be summarized as follows:
(1) concurrent sentences may be authorized in
two or more misdemeanor cases involving
imprisonment only;
(2) fines for two or more misdemeanors which
are satisfied by confinement must be served
consecutively;
(3) fines assessed in a single sentence along
with imprisonment must be satisfied apart from the
jail term, either by payment or confinement for a
separate period;
(4) jail sentences for misdemeanors which are
imposed after confinement has begun for default of
payment of a fine and costs are concurrent with
the fine if (a) the terms are not made cumulative
and (b) imprisonment for both fine and jail terms
is in the same facility.
In light of the foregoing discussion, we conclude that two
misdemeanor sentences pronounced on the same day are to be served
cumulatively when one sentence authorizes imprisonment and the other a
fine. In reaching this conclusion, we are mindful of the distinction
drawn by the legislature and the courts between fines and imprisonment
as forms of punishment. The Texas courts' practice of separating
fines from imprisonment is, in our view, consistent with the judgment
of other courts that confinement for nonpayment of a fine is not
punishment for that offense; rather, confinement serves as an
enforcement device for collection of the fine. See 18 A.B.A.
Standards for Criminal Justice 7.4 and cases cited therein. Texas
courts have observed this practice even in cases involving multiple
sentences where each sentence involves a fine and/or a jail term.
Williams v. State, 287 S.W.2d 660 (Tex. Grim. App. 1956) (3 sentences
-- (1) one year in jail, (2) $100 fine, (3) one year and $50 fine --
to be served consecutivel~yalthough not expressly made cumulative);
Bristow v. State, 267 S.W.2d 415 (Tex. Crim. App. 1954) (2 sentences,
each for six months in jail and $300 fine -- jail terms served
concurrently, fines discharged cumulatively); Paris v. State, 135 S.W.
381 (Tex. Crim. App. 1911) (2 sentences -- (1) $25 fine and six months
p. 451
Honorable Henry Wade - Page 5 (JM-107)
imprisonment and (2) $50 fine'-- to be served cumulatively upon order
of sentencing court). Moreover, a contrary rule would, in our
opinion, encourage misdemeanants to avoid payment of fines; the policy
of this state as expressed by the legislature and courts does not
warrant such an outcome.
With regard to your second question, our research has yielded no
authority construing the 72 hour provision of'article 6687b. section
34, V.T.C.S. This office has, however, previously determined that a
three-day period is equivalent to three calendar days, not 72 hours.
Attorney General Opinions WW-1352 (1962); WW-1204 (1961). In
construing any statute, of course, we are required to read words in
context, according to ordinary rules of grammar, and in their ordinary
signification unless a technical or artistic meaning is apparent
either from legislative definition or particular usage. V.T.C.S. art.
10, 91; art. 5429b-2, 92.01. While we find no particular or technical
meaning attaching to the words "72 hours," we do recognize that this
provision may facilitate the discharge of particular sentences --
i.e., sentences served during off-work hours or weekends. See Code
Crim. Proc. art. 42.03, OS(a). We also recognize the need for
operational certainty and efficiency in local detention facilities.
Nonetheless, in the absence of specific authority, we cannot conclude
that a 72 hour sentence may be treated as three days; therefore, an
individual serving a 72 hour sentence must be released upon expiration
of that period. However, in light of the difficulties encountered in
the daily operation of a large jail, we believe it reasonable to
release an individual as close to the seventy-second hour as is
practicable. Such a practice will, in our opinion, promote the ends
of punishment (by requiring an individual to serve the sentence
imposed by legislative sanction and judicial authority) and efficiency
(by permitting jail authorities to establish predictable standards of
operation).
SUMMARY
Two misdemeanor sentences imposed on the same
day, one for a fine and costs and the second for a
jail term, are to be served consecutively. A
sentence of 72 hours requires a jailed individual
to be released upon expiration of that period or
as close to that time as is oracticable. _
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
p. 452
Honorable Henry Wade - Page 6 (JM-107)
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrisons
Jim Moellinger
Nancy Sutton
p. 453