Untitled Texas Attorney General Opinion ( 1942 )

Hon. H. A. Hodges Opinion NO. O-4482
County $uditor Re: Construction of Article793,
Williamson County v. ,1.S,C.P., (as amended by S.S.
Georgetown, Texas 222, ~,48th Legislature) and con-
strucflon’of Article 4
gLO, V. ci.
Dear Sir: C.C.P.
Your re~:~xs’c fror o::inion has been received and care-
fully considered b;; this department. We q~lc,.te from your re-
quest as follows:
kindly give me an opinion relative to the pro-
cedure in time in jail ,nd allowance per day on fine
and costs in a misdemeanor case in the Justice Court.
“tit. 9iO C.C.P.(2) recites a ten day imprison-
ment while the above article, (referring to Article
793, V.;i.C.C.P.~, as amended by-S.B. 222, 48th Legis-
lature) in my opinion, conflict% therefore I desire
to be informed which article pre&ils?
Yf d person is in j::lil with a tot:+.1 amount of
$14.00 for fine and costs and serves four days and
pays $2.00 I consider his fine and costs paid in fall
and he is to be discharged, but if he is in jail to
serve a total of $14.00 for fine and costs :,nd after
being in jail 5 days requests a release, as he has
really paid $15.00 for the $3.00 per day allowed un-
der S.B. 222,, I do not know, just how to inform the
Justice of the Peace on account of the conflict with
Art. No. 920 C.C.i?. It appears to me he h,as forfeited
his right to release by not having tendered some pay-
ment before the 5 days ;l+>sed.
‘1, . . .I1 (Ijracket insertion ours)
&ticle 793; Vernon’s Annotated Texas Code of Criminal
Procedure, as amended by Senate Bill 222, 48th Legislature of
Texas, 1943, reads as follows:
When a defendant is convicted of a mis.demeanor
and his punishment is assessed at a pecuniary fine,
if he is unable to pay the fine and costs adjudged
against him, he may for such time as will satisfy the
judgment be put to work in the workhouse, or on the
county farm, or public improvements of the county, as
-..
Hon. H. A. Hodges, page 2 (O-4482)
.,
..-
provided’in~the succeeding article; or if there be.
no such workhouse farm or itiprovements, he shall be
imprisoned in jai! fdr ~a sufficient length of time
to discharge the full amount of fine and costs ad-
judged against him; rating such labor or imprisonment
at Three ($3.00) ~Dollars for each day thereof; pro-
vided, however,.-that the defendant may pay the pecu-
niary fine assessed against him at any time while he
is serving at work in the workhouse, or on the county
farm, or on the public, improvements of the county, OP
while he is serving his jail sentence, and in such in-
stances he shall be entitled to a credit of Three
($3.00) Dollars for each day or fraction of a day that
he has-served and he shall only be required to pay the
balance of the pecuniary fine assessed against him.”
Article 793 of the Code of Criminal Procedure in 1925
provided that when a defendant is convicted of a misdemeanor
and his punishment is assessed at a pecuniary fine and that if
he is unable to pay the fine and costs he should be Imprisoned
in jail or put to work in the workhouse or on the county farm
or public improvements of the county, rating such Iabor or im-
prisonment at $3.00 for each day thereof. This article w’as
amended by the. Acts of 1927, 40th Legislature, ~First Called Ses-
sion page 194 chapter 68, Section 1, by reducing the rate from
$3.06 per day {o $1.00 per day, This article was againamended
by the Acts of 1934, 43rd Legislature, Second Called Session,
page 85# chapter 33, Section 1; by ‘changing the rate from $1.00
per day to $3.00 per day. This Article was again amended by the
Acts of 1937, 45th Legislature, First CaIled Session, House Bill
45 Section 1. The.1937 amendment to Article 793 provided cer-
taln exceptions applying to counties of certain o ulation brack-
ets. The case of Ex parte Ferguson, 132 S*W. (2dP k8, Texas
Court of Criminal kppeals held the bracket exceptions contained
in the 1937 amendment to Article 793, unconstitutional and void.
4rticle 920, Vernon’s Annotated Texas Code of Criminal
Procedure,.reads as follows: - _
ItA defendant pIaced in jail on account of failure
to pay-the fine and costs can be discharged on habeas
corpus by showing:
“1. That he’is too poor to pay the fine and costs,
and
42. That he has remained In jail a sufficient
lengtta of time to satisfy the fine and costs, at. the
rate of $3.00 for eaah day.
“But the defendant shall, in no case under this ar-
ticle, be discharged until he has been imprisoned at
- .
Hon. H. .‘i. Hodges, page 3 (O-4482)
least ten days; and a Justice of the Peace may dis-
charge the defendant .upon his showing.,the same cause,
by application to such~ justice; and when such appli-
cation is granted, the justice shall note the same on
his docket .I’
The Court of Criminal !ippeals has recognized a distinc-
tion between the credit to be allowed for service in jail under
the two statutes. WC direct your attention to the fact that 9r-
title 793, supra, applies to the satisfaction of judgments in
misdemeanor cases in courts oth,*r than Justice Courts. ~See Ex
parte Fernandez, 57 S.N.(l:d) j78; Ex parte McLaughlin, 60 S.W.
(2d) 756.
In the McLaughlin case, the conviction WL;S in the Cor-
poration Court of El Paso.’ &cti.cle 793’was held applicable, and
the court, makes the unequivocai statement that “Article 920 ap-
plies alone to ccnvictions before Justices of the Peace.”
?residing Judge Morrow in the Fernandez case, wrote the
following:
“The chapter inwhich Article 920,~ supra appears
is one having reference to a judgment of conv 1 ction in
a criminal action before a Justice of the Peace. From
what h<,s been said ,it is apparent that the statutorv
iiuakyp~x``*&``Wect in lmd
c ‘en 110 ,h convicti.Qn of a -nor ba-
fore the Justice of the Peace and the conviction of a
&&&$&y:oy. in co~&ts of h&her jurisdiction The rea-
son for the distinction ‘?lay be only a matter’of conjec-
ture; ,Since the statutory direction was definite in
its terms, the duty of the court to apply it as written
is mandatory. However, it may 1:ae said that the Justice
Courts are limited by the Constitution (Article 5 Sec-
tion 19) in criminal matters to a fine not exceed&g
$200.00.while under titicl’e 5, Section 16, other courts
are given jurisdiction in misdemeanors of much higher
grade and with penalties far more severe.”
Article 920 of the Code of Criminal Procedure, there-
fore relates particularly and applies particularly to Justice
Courts.
A study of the opinion in Ex parte Fernandez case, su-
pra, will show th::t the court clearly recognized ,the principle
that a person who has been convicted of a misdemeanor in the Jus-
tice Court, and who was serving his time in jail must remain In
jail at least ten days and for a time sufficient to discharge his
fine.
Bon. H. A. Hodges, page 4 (O-4482)
We quote from Opinion No. O-441 of this department as
follows:
“It is the opinion of this department that $3.00
per day is the proper rate for allowance or credit to
be given prisoners who have been convicted of misde-
meanors for serving time in jail, or for working out
their fines was provided by law in Collingsworth County,
Texas. It is ‘the further opinion of this department
that Article 920 of ‘the Code of Criminal Procedure of
Texas.applies only to convictions obtained in Justice
Courts but the same is mandatory as applied to.Justice
Courts. For example, A, B, and C are all convicted in
Justice Courts for misdemeanor. At s fine and costs
amount to $15.00; B’s fine and costs amount to $30.00
and C’s fine and costs amount to $45.00. Under Article
920 of the Code of Criminal Procedure, although said
ilrticle allows $3.00 per day for jail service, said ar-
ticle further provides a minimum of ten days imnrison-
ment . A must serve the minimum of ten days; B must
serve ten days. B’s fine and costs amount to $30.00
which divided by $3.00 would make ten days. Cl s fine
and costs amount to $45.00; he is allowed $3.00 per day;
he must serve 15 daysen
We quote from Opinion No. O-1015 of this department as
follows:
‘1, . . we respectfully call your attention to the
last gentence of the opinion of Ex parte Hill, 15 S.W.
(26) 14, in which the court recognizes that prisoners
should be given credit on their fines and costs for serv-
ice in jail or in the workhouse or other public works.
In that case the court states that where a defendant has
been Indicted for a felony and convicted for a misdemean-
or the defendant shall be discharged upon serving of the
all sentence, or fine and costs, at the credit rate of
4 3.00 per day, or after serving the fine and jail sen-
tence upon the payment ‘of whatever balance is due there-
on’. We know of no reason for a different rule where the
original prosecution was for a misdemeanor in any court
having jurisdiction thereof. In the Hill case the Court
of Criminal Appeals definitely.recognizes the right of a
convict to serve part of his,time in jail and pay the
balance in cash.
“In arriving at the proper credit to be allowed for
service in jail under a conviction in ,,he Justice Court,
we must observe the provisions of Article 920 Code of
Criminal Procedure, supra, that ‘the defsndan 4 shall, in
no case under this Article, be discharged until he has
Hon. H. ,i* Hodges, page 5 (O-4482)
been imprisoned at least ten days;‘.
r
“It is, therefore, our opinion that a prisoner
convicted in the Justice Court, when his to,tal fine
and costs is a sum under ii30.00 should receive cr?Jit
for only one-tenth of the. total amount for each day ha
serves. .To illustrate, and carry Mr. *S exam-
Tie further, :i, whose fine and costs amount to..$lT.OO
should receive credit for $1.50 for each day served in
custody; should he elect to pay the balance of his ob-
ligation in cash after five days in jail, he should be
required to pay $7.50 in cash.
“In a letter opinion written August 20, 1935, by
Honorable Leon Moses, Assistant Attorney General, to
Honorable D. E. Wood, County Attorney of Williamson
County (Vol. 366, Letter Opinions, page 6561, it was
held in-any case in Justice Court where the ,fine and
costs are less than $30*00, the proper and reasonable
way to allow credit .for time spent in jail would be to
divide the amount of the fine and costs by ten, which
is the minimum number of days that the defendant must
serve before being released.
“In your letter you used an illustration of a per-
son who was convicted of a misdemeanor and his penalty
:iffixed at a fine of $1.00 and costs of $13.00, making
a total of $14.00, and stated the convict had served
four days In jail, wished to pay the balance of his
fine and costs in cash, and thereby obtain immediate
relief. In this specific instance we are of opinion
the defendant should be allowed credit of $1.40 per day,
which at, four days would amount to $5.60. Subtracting
the 45.60 as jail credit, from the total amount of
$14.00 would leave a balance of $8.40 which should be
paid in order to obtain the release of the defendant
from custody.”
It is our opinion that the amendment to Article 793,
quoted above, applies to misdemeanor convictions in courts other
than Justice Courts, and does not affect Article 920 which ap-
plies .to Justice Courts alone.
‘Under the facts stated by you the defendant’s fine and
costs in Justice Court amounted to $14.00 and the defendant paid
$2.00 on such fine and costs and served four days in jail. Since
his fine .and costs are under $30.00, the amount ($14.00) should
be divided by ten to arrive at the proper credit-to be allowed
him for jail service, which amount is $1.40 per day. He served
Hon. H. A. Hodges, page 6 (O-4482)
four days and he should be credited therefor with the sum of
$5.60, which when added to the $2.00 paid, makes the sun~of
$7.60. Subtracting the $7.60 from the total fine and costs
leaves a..balance of $6.40 owing by the defendant on said fine
and costs.
Trusting that this satisfactorily answers your inquiry,
we are
Very truly yours
UTORNEY GENWAL OF TEXAS
@y /s/ Wm. J. k&u&g
Wm. J. Fanning, Assistant
APPROVEDJUL 3 1.943
[s/ Grover Sellers
First Assistant Attorney General
APPROVED: omuoi comr Tm
BY: BWf3, CHAIRMAN
WJF:mprwb