Ex Parte Rodriguez

BROOKS, Judge.

Relator applied for the writ of habeas corpus to Hon. R. C. Dawson, county judge of Sutton County, in vacation, to be released from a fine imposed in the justice court. He states in his application: “I do further swear that I was committed to jail by virtue of the process annexed hereto on the date therein named, to wit, on January 31, 1903; that I am, and have been ever since the same was imposed on me, too poor to pay said fine and costs; that I have not been afforded an opportunity by the commissioners court of the county of discharging the fine and costs adjudged against me, as provided in the law relating to county convicts; that I have remained in jail a sufficient length of time to satisfy said fine and costs at the rate of three dollars for each day; that I have been confined for more than ten days.” The evidence adduced on the hearing is substantially as follows: Appellant had been in jail fourteen days; that he had not been put to work at the county workhouse, upon the county convict farm, nor upon the public roads, bridges or other improvements of the county, but that he had on three different occasions since his imprisonment swept out the county courthouse; that he had not been hired out under the law relating to county convicts. It was shown by the testimony of Albert Owens that he was constable of precinct No. 1, Sutton County; that he arrested appellant; that when he put appellant in jail, and .told him he could give a convict bond, or could make an affidavit showing his inability to pay the fine and costs adjudged against him, in which case he would be entitled to a credit of $3 for each day he remained in jail, he was not certain appellant understood him although he had a Mexican interpreter. It was agreed in open court by counsel for State and defendant that appellant was then, and ever since his imprisonment had been, too poor to pay the fine and costs adjudged against him, and that appellant had not, as suggested in article 856, Code of Criminal Procedure, made an affidavit showing his inability to pay the fine and costs adjudged against him.

Appellant insists that he was entitled to his discharge because the evidence shows that he had been placed in jail on account of the failure to pay the fine and costs against him in the justice court; and having shown further, first, that he was too poor to pay said fine and costs; second, that he had not been afforded an opportunity by the commissioners court of the county of discharging the fine and costs adjudged against him, as provided in the law relating to county convicts; and third, that he had remained in jail a sufficient length of time to satisfy said fine and costs at the rate of $3 for each day, and that he had remained in jail at least ten days—this contention involves a construction of articles 856 and 980, Code of Criminal Procedure. The latter article was passed in 1858 and the former some time after that. If there is an apparent conflict, said statutes must be reconciled, if a proper judicial construction of the same will enable us to do so. We hold article 980, Code of Criminal Procedure, in any event, does not authorize the release of relator unless he has been imprisoned for ten days; and he must also have complied with the provisions of article 856, in relation to filing his affidavit authorizing a credit upon his fine of $3 per day. The mere fact that relator had been confined over ten days, in the absence of such affidavit, would not per se authorize his release. Clearly, article 980 contemplates that the same must be considered in pari materia with article 856, and, when so done, the conclusion here stated is irresistible; that is, -that relator, if convicted in the justice court, and immediately makes an affidavit of his inability to pay the fine and costs; as required by article 856, and is not afEorded an opportunity by the commissioners court of the county to discharge said fine and costs, as provided by law relating to county convicts, then he is entitled to -he discharged, either on habeas corpus or by proper showing before justice of the peace, unless it is further,, made to appear that he has not been in jail ten days. In other words, when one is convicted in the justice court, he can not,- in any event, be discharged until he has remained ten days in jail, and not then unless he has filed the proper affidavit as required by article 856. It follows, therefore, that the judgment of the lower court remanding relator to the custody of the officer must be affirmed, and it is so ordered.

Affirmed.