Untitled Texas Attorney General Opinion ( 1942 )

L .
TEEAITORNEY GENERAL
OFTEXAS
Honorable E. L. Hinson. Jr.
County Auditor
Polk County
Livingston, Texas
Dear Sir: Opinion No. O-4924
Re: Fees of office--Justice~of the,
Peace--Constables--Article 1055
Cow. C. P.--Proration of costs and
other related matters.
Your request for opinion upon the following stated
questions:
"(1) Under Article 1055 of the Code of Crim-
inal Procedure, ana according to your recent
Opinion, which holds the county liable to each
officer and witness having cost in a misdemeanor
case for only one-half thereof where the defend-
ent has satisfied the fine and~costs adjudged
against him in full by labor in the'workhouse or
public roads of county or serving same in jail,
is the county to pay the Justice of the Peace or
Constable or other officers their fee at the time
of conviction or when the defendent has satisfied
his fine in full by labor or laying same out in
jail.
"(2) Where a defendent pays part of his fine
and works or lays the balance out in jail, dent
the different fee officers get that part of cash
payment by percentage'basis. I mean by this that
the Fine, Fee, County Attorney, County Clerk,
Sheriff or Constable should get their per cent of
the part payment on the fine and then the unpaid
part will be paid out of the Road & Bridge Fund
as one-half fee.
"(3) Where a defendent has been convicted
and has been assessed a fine in the Justice of
Peace Court, can'the Justice of the PeaCe turn him
loose or discharge him with the promise that the
defendent will pay fine or should he turn him over
to the Sheriff until fine is paid or the defendent
Honorable E. L. Blnson, Jr., page 2 O-4924
is permitted to work out fine. Can the Justice of
the Peace commit the defendent to work out his fine
with the county work house or on the county Roads
or should not the Justice of the Peace commit him
to the eheriff and,then the sheriff would see that
he works out the fine or lays same out in jail."
Article 1055, Vernon's Annotated Texas Code of Crim-
inal Procedure, reads as follows:
"The aounty shall not be liable to the officer
and witness having costs In a misdemeanor case
where defendant pays his fine and costs. The coun-
ty shall be liable for one-half of the fees of the
officers of the Court, when the defendant fails
to pay his fine and lays his fine out in the coun-
ty jail or discharges the same by means of working
such fine out on the county roads or on any county
project. And to pay such half of costs, the Coun-
ty Clerk shall issue his warrant on the County
Treasurer in favor of such officer to be paid out
of the Road and Brlaae Fund or other funds not
otherwise approprlat&l. As amended Acts 1937,
45th Leg., p. ch. 488,~l ; Acts 1939, 46th .
Leg., p. 143, 13231,
191.
Article 1052, Vernon's Annotated Texas Code of Crimi-
nal Procedure, provides for the payment of certain fees to
the County Judge and Justice of the Peace by the county and
reaas as follows:
"Three Dollars shall be paid by the county
to the County Judge, or Judge of the Court at Law,
and Tvo Dollars and fifty cents shall be paid by
the county to the Justice of the Peace, for each
criminal action tried.and finally disposed of be-
fore him. Provlded;however, that in all counties
having a population of 20,000 or less, the Justice
of the Peace shall receive a trial fee of Three
Dollars. Such Judge or Justice shall present to
the Commissioners' Court of his county at a regu-
lar term thereof, a written account specifying
each criminal action ln which he claims such fee,
certified by such Judge or Justice to be correct,
and filed with the County Clerk. The Commission-
ers' Court shall approve suah account for such
amount as they find to be correct, and order a
draft to be issued upon the County Treasurer in
favor of suoh Judge or Justice for the amount so
approved. Provided the Commissioners' Court shall
Honorable E. L. Hinson, Jr., page 3 O-4924
not pay any account or trial fees in any case
tried and in which an acquittal is had unless the
State of Texas was represented in the trial of
said cause by the County Attorney, or his assist-
ant, Criminal District Attorney OP his assistant,
and the certificate of said Attorney is attached
to said account certifying to the fact ,thatsaid
cause was tried, and the State of Texas was repre-
sented, ana that in his judgment there was suffi-
cient evidence in said cause to demand a trial of
same. (As amended Acts 1929, 41st Leg., p* 239,
c~h.104, 8 1; Acts 1929, 41st Leg., 1st C. S., p9
155, ch. 55, LI10)"
The fees of the Justice of the Peace and County Judge
for their services in trials of misdemeanor cases, both on
pleas of guilty and contested cases, are payable by the county
as provided by Article 1052, V.A.C.C.P., supra, Opinion No.
O-616 of this department holds, among other things that inso-
far as the Justice's and County Judge's fee are concerned the
manner in wb,ich judgments in misdemeanor cases are satisfied
is immaterial and that the Judge or Justice is entitled to be
paid by the County the full fee as provided by Article 1052,
V.A.C.C.P., for each criminal action tried and finally disposed
of by him, regardless of whether the fine and costs are ever
collected or satisfied, In other words the right of the Judge
or Justice to his fee under Article 1052, V.A.C.C.P., does not
depend upon the collection or satisfaction of the fine and
costs, and is a fee not collected from the defendant upon con-
viction but is strictly a fee to be paid the Judge or Justice
by the county.
Trial fees are assessed under the provisions of Arti-
cle 1074, Vernon's Annotated Texas Code of Criminal Procedure,
which reads as follows:
"In each case of conviction in a county Court,
or a County Court at Law, whether by a jury or by
a Court, there shall be taxed against the defendant
or against all defendants, when several are held
jointly, a trial fee of Five Dollars, the same to
be collected and paid over in the same manner as
in the case of a jury fee, and in the Justice Court
the trial fee shall be the sum of Four Dollars.
s amended Acts 1929 41st Leg
iAl Acts 1929 41s'cieg., 1st 6'. g:,4z6'l$'
* f z?'-
56,k. )" f
Article 1065, Vernon's Annotated Texas Code of Crimi-
nal Procedure, provides certain enumerated fees for sheriffs
Honorable E. L. Hinson, Jr., page 4 O-4924
and other peace officers (Including constables) who perform
services in misdemeanor cases, to be taxed against the de-
fendant on tionviction. Article 1061 and Article 1068, Ver-
non's Annotated Texas Code of Criminal Procedure, provide,
among other things, certain enumerated fees for county ettor-
neys to be taxed against the defendant on conviction.
Articles 783, 787, 788, 789, 793, 794, 795, 797 and
920, Vernon's Annotated Texas Code of Criminal Procedure,
read as follows:
"Art. 781. (8671 (845) As to fine
"When the defendant is only fined the judgment
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 present,
be committed to jail until such fine and costs are
paid; or if the defendant be not present, that a
capias forthwith issue,'commanding the sheriff to
arrest the defendant and commit him to jail until
such fine and costs are paid; also, that execution
may issue against the property of such defendant
for the amount of such fine and costs."
"Art. 787. (871) (849) Pay or jail
"When a judgment has been rendered against a
defendant for a pecuniary 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,,authorizesuch
imprisonment. (0. C. 694, 695.)
"Art. 788. (8721 (850) If defendant is absent
"When a pecuniary fine has been adjudged
against a defendant not present, a capias shall
forthwith be issued for his arrest. The sheriff
shall execute the same by placing the defendant
in jail."
"Art. 789. (8771 (851) Capias shall recite what
"Where such capias issued, it shall state the
rendition and amount of the judgment and the amount
unpaid thereon, and command the sheriff to take the
defendant and place him in jail until the amount
due upon such judgment and the further costs of
collecting the same are paid, or until the defend-
ant is otherwise legally discharged. (0. c. 700.)"
Honorable g. L. Rlnson, Jr., page 5 0 -4924
"Article 791. (878) (856) Fine discharged
"When a defendant is convicted of a misde-
meanor and his punishment is assessed at a pecun-
iary 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 Fn
the workhouse, or on the county farm, or public
improvements of the county, as provided in the suc-
ceealng article, or Lf there be no such workhouse,
farm or improvements, he shal,lbe Imprisoned in
jail for a sufficient length of time to discharge
the full amount of fine and costs adjudged against
him; rating such labor or Imprisonment at Three
Dollars ($3.00) for each day thereof. As amended
Acts 1927, 40th Leg., 1st C. S. p. 194 g* $f,
8 1; Acts 1934, 43rd Leg., 2nd t. S., p: 6 *
33, 3 1."
"Art. 794. To do manual labor
"Where the punishment assessed in a convlc-
tion for misdemeanor is confinement in jail for
more than one day, or where in such convFctFon
the punlshment Is assessed only at a pecuniary
flne and the party so convlcted is unable to pay
the fine end costs adjudged against him, those
so convicted shall be required to do manual labor
in accordance with the provisions of this article
under the following rules and regulations:
"1. Each commissioners court may provide for
the erectlon of a workhouse and the establishment
of e county farm In connection therewith for the
purpose of utilizing the labor of said partles so
convicted.
"2. Such farms and workhouses shell be under
the control and management of the commissioners
court , end said court may adopt such rules and
regulations not inconsistent with the laws as they
deem necessary for the successful management and
operation of said institutions end for effectively
utlllsing said labor.
"3. Such overseers end guards may be employed
under the authority of the commissioners court as
may be necessary to ,preventescapes and to enforce
such labor, and they shell be paid our of the county
treasury such compensation as said court may prescribe.
Honorable E. L. Rinson, Jr., page 6 O-4924
“4. Those so convicted shall be so guarded
while at work as to prevent escape.
“5. They shall be put to labor upon the pub-
lic roads, bridges or other public works of the
county when their labor cannot be utilized in the
county workhouse or county farm.
“6 . They shall be required to labor not less
than eight nor more than ten hours each day, Sun-
days excepted. No person shall ever be required
to work for more than one year.
“7. One who refuses to labor or is otherwise
refractory or Insubordinate may be punished by
solitary confinement on bread and water or in such
other manner as the commissioners court may direct.
“8. When not at labor they may be confined
in jail or the workhouse, as may be most conven-
ient, or as the regulations of the commissioners
court may prescribe.
"9. A female shall in no case be required to
do manual labor except In the workhouse.
"10. One who from age, disease, or other phy-
sical or mental disability is unable to do manual
labor shall not be required to work, but shell re-
main in jail until his term of Imprisonment is
ended, or until the fine and costs adjudged against
him are discharged according to law. His inabil-
ity to do manual labor may be determined by a phy-
sician appointed for that purpose by the county
judge or the commissioners court, who shall be
paid for such service such compensation as said
court may allow.
"11. One convicted of a misdemeanor whose
punishment either In whole or in part is imprlson-
ment in jail may avoid manual labor by payment
Into the county treasury of one dollar for each
day of the term of his imprisonment, and the re-
ceipt of the county treasurer to that effect shall
be sufficient authority for the sheriff to detain
him in jail without labor."
"Art. 795. (879) (857) Authority for imorisonment
"When, by the judgmentof the court, a defendant
Honorable E. L. Hlnson, Jr,, page 7 O-4924
is to be imprisoned ln jail,Ta certFfied copy
of such judgment shall be sufficient authority for
the sheriff to place such defendant In jail."
"Art. 797. (881) (859) Discharge of defendant
"A defendant who has remained in jail the
length of time required by the judgment shsll be
discharged. The sheriff shall return the copy of
the judgment, or the capias under which the de-
fendant was imprisoned, to the proper court, stat-
lng how it was executed."
"Art. 920. (1015) (980) -Discharged from jail
"A defendant placed in jail on account of
failure to pay the fine and costs can be dis-
charged on habeas corpus by showing:
"1Q That he is too poor to pay the fine and
costs, and
"2. That he has remained in jail a suffi-
cient length of time to satisfy the fine and
costs, at the rate of three dollars for each day.
"But the defendant shall, in no ease under
this article, be discharged until he has been im-
prisoned et least ten days; and a justice of the
peace may discharge the defendant upon his showing
the same cause, by application to such justice;
end when such application is granted, the justice
shall note the same on his docket."
The court of Crl.mLnalAppeals of Texas has defini?ely
recognized that prisoners should be given credit on their fines
and costs for service in jail or in the workhouse or other pub-
lic works. The court also definitely recognized the right of
a convict to serve part of his tfme in jail and pay the balance
in cash. See the case of Ex parte Hill,15 S.W. (2d) 14 (Texas
Court of Criminal Appeals) o
The Court of Criminal Appeals of Texas has recognized
a distinction between the credit to be allowed for service ih
jail under Article 793 and Article 920 of the Code oftCriminal
Procedure a Article 793, supra, applies to the satisfaction of
judgments in misdemeanor cases In courts other than justice
courts. Article 920, supra, applies alone to convictions be-
fore justices of the peace. See Ex parte Fernandez (Texas
Court of Criminal Appeals), 57 S.W. (2d) 78 and Ex parte MC
Laughlin (Texas Court of Criminal Appeals5 . 60 S.W. (2d) 786.
Honorable E. L. Hinson, Jr., page 8 O-4924
We quote from opinion No. O-441 of this department as
follows:
"It is the opinion of this department that
$3.00 per day la the proper rate for allowance or
credit to be given prisoners who have been convlct-
ea of misdemeanors for serving time In jail, or
for working out their fines as provided by law.....
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 jus-
tice courts but the same Is mandatory as applied
to justice courts. For example, A, B end C are
all convicted in justice courts for misdemeanor.
A's fine and costs amount to $15.00; B's fine end
costs amount to $30.00 and C's fine and costs
amount to $45.00. Under Article 920 of the Code
of Criminal Procedure of Texas although said ert-
icle allows $3.00 per day for $ail service, said
article further provides e minimum of ten dagsslm-
prisonment. A must serve the minimum of ten days.
B's fine and costs amount to $30.00 which divided
by $3.00 would make ten days. C's fine and costs
amount to 845.00: he is allowed $1.00
,- aer
_ day; he
must serve‘15 days."
We quote from opinion No. O-1015 of this department,
rendered September 8, 1939, as follows:
"It is therefore our opinion that a prlson-
er convicted in the justlce court, when his total
fine and costs is a sun!under $30.00 should re-
ceive credit for only one-tenth of the total amount
for each day he serves. To illustrate, end carry
Mr. Is example further, A, whose fine-and
costs amount to $15.00 should receive credit for
$1.50 for each day-served in custody; should he
elect to pay the balance of his obligation in cash
after five days in jail, he should be required to
pay $7.50 in cash."
Opinion No. o-1578 of this Department holds that~a
constable Is entItled under Article 1055, Code of Criminal
Procedure of Texas, to half costs on that part of the time
a defendant remains in jail or works for the county when he
so discharges pert of the fine end costs and pays off a part,
and that the same shall be properly prorated.
Opinions Nos. 0-469 end O-755 of this department hold
that where only a part of the fine end costs are collected,
.
Honorable E. L. Hinson, Jr., page 9 O-4924
that the money collected should go first to the payment of
the costs and the balance, if any, to the amount of the fine
and that where there Is not enough collected to pay all of the
costs, the money should be prorated and that In such a case one
officer had no priority over another. We quote from opinion
No. O-755 as follows:
"In view of the trial fee above provided, be-
ing a part of the costs, and by reason that the
justice of the peace is paid by the county, it is
our opinion that the $8.50 ln question should be
prorated on the basis of $5.00 to the county attor-
ney; $5-50 to the constable and $4.00 to the coun-
ty, which figures approximately sixty-four and a
fraction cents on the dollar. The county would get
its prorata part of the payment.
Opinions Nos. O-469 and 755, supra, cite Article 949
of the Code of Criminal Procedure of Texas, which reads as
follows:
"Money collected by an officer upon recogni-
zance, ball bonds and other obligations recovered
under any provisions of this code, and all fines,
forfeitures, judgments and jury fees, collected
under any provisions of this code, shall forthwith
be paid over by the officers collecting the same
to the county treasurer of the proper county after
first deducting therefrom the legal fees and com-
missions for collecting same." (Underscoring ours)
We quote from opinion No. O-1792 of this department as
follows:
"5. In answer to your fifth question, it Is
the opinion of this department that where only a
part of the fine and costs are collected, that the
money collected should go first tothe payment of
the costs and the balance, if any, to the amount
of the fine, and that where there is not enough
collected to pay all the costs, the money collected
should be prorated between the arresting officer,
the county attorney and the county. That no offl-
cer has priority over another in such matter. For
example, if the fine and costs amount to $23.00,
as In your case, the fee of the county attorney
amounts to $5.00; the fee of the constable amounts
to $13.00 and the trial fee amounts to $4.00; if
the defendant paid $6.00 in cash and the balance
is worked out on the county farm the arresting of-
.
Honorable E. L. Rinson, Jr., page 10 0 -4924
ficer would be entitled to $3*55 of the cash pay-
ment? the county attorney would he entitled to
$1.36 of the cash payment and the county (as its
portion of the trial fee) would be entitled to re-
ceive $1.09 of the cash payment. The arresting
officer and the county attorney would also be en-
titled to receive payment from the county under
Article 1055, Code of Criminal Procedure of Texas,
one-half of the balance of their fees for the tLme
the defendant worked out the balance of his fine
and costs. Under the example quoted above the ar-
resting officer would be entitled to receive from
the county t'*esum of $4.72; the county attorney
would be entitled to receive from the county the
SUJUof $1.82. The total sum received by the ar-
resting officer from both sources would be $8.27;
the total sum received by the county attorney from
both sources would be $3.18.”
We answer your first question as follows:
It is our opinion that Article 1055, V.A.C.C.P., has
no application to the fees due the Justices of the Peace and
County Judges for their services in trying and finally dlspos-
ing of criminal cases inasmuch as they are entitled to full
fees from the county under ArtLcle 1052, V.A.C.C.P. for each
criminal action tried and finally disposed of, irrespective of
the collection or satisfaction of the judgments they render.
It Is our oplnion that county attorneys, constables,
sheriffs and clerks having costs in a misdemeanor case are not
entitled to one-half fees under Article 1055, V.A.C.C.P., prior
to satisfaction of the judgment by jail service, county farm
service, road work service OP other legal service on other
county projects as contemplated by Article 1055, V.A.C.C.P.
However, Lf the judgment is satisfied in part only by such
jail or other service under said Article 1055 saLd officers
would be entItled to half-costs on the portion of the judg-
ment which is satisfied. See Limited Conference Opinion No.
O-1578 of this department, a copy of which is enclosed herewith.
We answer your second question as follows:
It is our opinion under the facts stated in your
second question that the money collected should go first to
the payment of the costs and the balance, If any, to the pay-
ment of the fine, and that where there Is not enough collect-
ed to pay all the costs, the money collected should be pro-
rated among the officers having costs in the case and the
county (for its trial fee). That no officer has priority over
Honorable E. L. Hinson, Jr., page 11 O-4924
another officer or over the county in such proration. The
officers having costs in such case would also be entitled to
half-costs from the county under said Article 1055, for the
portions of time served in jail or other authorized service.
In this connection see our quotation above In this opinion
quoting from opinion No. O-1792 of this department which
thoroughly explains this matter ln detail.
Article 1055, supra, provides that such half-costs
shall be paid "out of the Road and Bridge Fund or other funds
not otherwise appropriated".
We answer your third question as follows:
This department has repeatedly held that the Justice
of the Peace has absolutely no authority to release a defend-
ant who is finally convicted and a fine assessed against him
on the defendant's promFse to pay later or on any other pro-
mise. We have likewise held repeatedly that if a Justice
were to attempt to make such order the Sheriff or Constable
should ignore the order and place the defendant In jail or
on the county farm or other authorized county project for the
satisfaction of the fine ana costs, unless the defendant paid
the fine and costs. We have likewise repeatedly held that the
Sheriff or Constable or other arresting officer would be in
the position of unlawfully permitting a prisoner to escape if
they falled to do their duty by not collecting the fine and
costs or by not taking the convicted defendant in custody.
It is our further opinion that the judgment of convic-
tion in a misdemeanor case will authorize the Sheriff to pro-
ceed in the statutory methods of collection of the fine and
costs and that no further orders from the JustIce of the Peace
are necessary. In other words if the defendant does not pay
the fine and costs adjudged against him the Sheriff should then
place him in jail, or on the county farm or other authorized
county pro,iTcCto work out his fine and costs. It should be
borne In mind,however, that the county farm is under the super-
vision of the Commissioners' Court and that such court has the
power to enact rules and regulations concerning the operation
of such farm and the Sheriff must, of course, be gulded by the
wishes and desires of the Commissfoners' Court as to the number
of and necessity for prisoners to be placed upon said county
farm. It is likewise true that it would be for the Commlssion-
ers' Court to determine the necessity or advisability of work-
ing county prisoners on the county roads or other authorized
county projects.
Trusting that this satLsfactorily answers your FnqUiry,
we are
. .
Honorable E. L. Rinson, Jr., page 12 0 -4924
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/wm. J. Fanning
Wm. J:'Fanning
Assistant
WJF:mp:wc
Encl.
APPROVED OCT 24, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman