 OFFICE OF THE ATTORNEY GENERAL    OF TEXAS
                   AUSTIN




Hon. ZI.T. Burna
ColuityAttorney
wal.lcer
       county
Huntsville, Term
Dear s1rr




                                   pt of your letter
                                   ted your Question
es above shown.                    ettar as r0110w8:
                                  be answered


                                 the ort ioers
                                heir ideB.*
                           of Criminal Proaedure of
                          05, 40th Leglalatureof Texas

                   ty shall not be liable to the
                   tneea hevlng ooata in a mie-
                     em defendant paye hle tine
                     oounty shall be liable for
                     fees of the oftiosrs or the
            hen the defendant fail8 to pay hie
    fine and lays his fins out in the oounty
    jai~lor dieoharges the mm    by mane of work-
    ing euoh ‘fine out on the aounty roads or on
    any aounty projeot. And to pay suah half of
    aoata, the County Cl.erkshall iaeum his wer-
    rant on the County Rreaeumr in favor of euah
    offioer to be paid out of the Road and Brid&s
Bon. I?.T. Burns, Page 2


     Fund or other funds not otherwise eppro-
     priated."
          Article 183, Code of Criminal   Procedure of
Texas reads as follows:
          When the defendant is only fined the
     judgment shell be that the State of Texas
     recover of the defendant the amount of such
     fine end all costs of the proeeaution,and
     thst the defendant, if present, be oommitted
     to jail until such fine and costs are paid;
     or if the defendant be,not present, that a
     caples forthwith issue, commending the sheriff
     to arrest the defendant end commit hlm to
     jell until suah fine and coats are paid; also,
     thst execution may issue against the property
     of such defendant for the amount of such fine
     and costs.".
          Article 784, Code of tirl.minalProoedure
                                                of
Texas reeds as followsr
          "If the punishment is aqv other than
     a fine, the judgment shall specify it, and
     order it enforced by the proper prccess.
     It shall also adjudge the cost8 against the
     defendant,end order the oollectionthereof
     as in other cases.n
          Article 793, Code of Criminal Procedure of
Texas reads as follows;
         "W%en a defendant is convicted of e
    misdemeanor and his punishment Is assessed
    et a pecunfary,fine,if he is unable to pay
    the fine and oosts adjudged against him, he
    may for such time as will satisfy the judg-
    ment be put to work in the workhouse, or on
    the oounty~farm,or public improvementsof
    the county, as provided In the suoceedlng
    Axtlole, or If there be no such workhouse,
    fern or Improvements,he shall be imprlson-
    ed in jail for a sufrlclent length of time
    to discharge the full amount of fine end
    costs adjudged against him; ratin such labor
    or Imprisonmentat Three Dollars Y$53)for
    each day thereof;....W
                                                       525




Hon. R. T. Burns, Page 3


          Article 794, Code of Criminal Procedure of
Texas, reeds es follows:
         "Where the punishment assessed in a
    convictionfor misdemeanor Is oonflnement
    in jell for more than one day, or where in
    such convictionthe punishment Is assessed
    only et e pecuniary fine end the party so
    convicted Is unable to pay the fine end costs
    adjudged against him, those so convfctsd
    shell be required to do manual labor in
    accordancewith the provisions of this
    article under the@llowing rules end regu-
    lations:
         "1. Each cokmlssionersoourt may pro-
    vide for the erectionof a workhouse end
    the establishmentof a oounty farm In con-
    nection therewith for the purpose of utiliz-
    ing the labor of said parties so oonvlcted.
         "2. Such terms end workhouses shell
    be under the control and menegsment of the
    commlseionerscourt, end said court may adopt
    such rules and reguletionsnot inconsistent
    with the laws es they deem necessary for the
    auocessrulmanagement end operation of said
    institutionsand for efrectivelyutilizing
    said labor.
         "3. Suah overseers end guards may be
    employed under the authority of the ccmrmls-
    sloners court es mey be necessary to prevent
    escapes end to enforce such labor, end they
    shell be paid out of the county treasury such
    oompensetionas said oourt mey prescribe.
         "4. Those so convicted shell be so
    guarded while et work es to prevent cxoepe.
         "6. They shall be put to labor upon
    the public roads, bridges or other public
    works of the county when their labor oennot
    be utilized in the county workhouse or oounty
    farm.
         "0. They shell be required to labor not
    less then eight nor more than ten hours each
    day, Sundays excepted. No person shell ever
Hon. R. T. Burns, Page 8


     be requiredto work for more than one year.
          "7. One who refuses to labor or Is
     otherwise refrectory or Insubordinatemay
     be punished by solitary confinementon
     breed end weter or in such other manner es
     the commissionerscourt may direct.
          "8. 'Whennotet labor they may be con-
     fined in jail or the workhouse, es may be
     most convenient,or es the regulationsof
     the commissionerscourt may prescribe.
         "9. A female shell in no oase be re-
    quired to do manual labor except in the
    workhouse.
         "10. One who from age, disease, or
    other physical or mental disability is un-
    able to do manual labor shall not be requir-
    ed to work,but shell remein in jail until
    hls term of imprisonmentis ended, or until
    the fine and costs adjudged against him are
    discharged accordingto law. His lnebilitp
    to do manual labor may be determinedby a
    physiolen appointed for that purpose by the
    county judge or the ocmmissionerscourt, who
    shell be paid for such servloe suoh compeh-
    setion es said court may allow.
         "11. One convicted of a m&sdemeenor
    whose punishmenteither in whole or in pert
    is imprisonmentin jell may avoid manual
    labor by payment into the county treasury
    of one dollar for each day of the term of
    his imprisonment,and the receipt of the
    county treasurer to that effect shall be
    sufficientauthority for the sheriff to de-
    tain him in jell without labor."
          Article 795, Code of Criminal Procedure of
Texas, reeds es follows:
          "When, by the judgment of the court, a
     defendant Is to be imprisoned in jail, a
     certified copy of suoh judgment shell.ba
     suffioientauthority for the sheriff to
                                                          527



Hon. R. T. Burns, Page 5



     place such defendent in jaiLgq
          Article 798, Code of Criminal Procedure of
Texas, reads es follows:
         "A ceplee Issued for the arrest end
    commitment of one convicted of a misdemeen-
    or, the penalty of which or any pert there-
    of is imprisonmentIn jail, shell recite
    the judgment end command the sheriff to place
    the defendant in jell. to remain the 1enRth
    of time therein fixedi end this writ sheil
    be surrloientto authorize the sheriff to
    place such defendant in jail."
          Vkquote from 11 Texas Jurisprudence,costs,
                                       Seotion 9% page
Chapter XIII, In Criminal Prosecti.ions,
396, es followsz
          "Artlole 784 of the Coda of Criminal
    Procedure
          . ..provides
        . is       ..   Chat
                        ..   &here
                                -. the
                                    .. punish-
                                        _-
    ment       .. ctner tnen a rine tne Judgment
    shall...,edjudgethe costs against the deren-
    dant, and order the oollection thereof as in
    other cese8.v In view of this provision, the
    State may recover the amount of the fine and
    costs in the manner provided for, which may
    include several methods. It wes intended by
    the use of the word ~collection'in the letter
    pert or Article 784, supre, not to restrict
    the colleotion of oosts to en execution only,
    but to permit collectionas In other misde-
    meanor ceses. Under Articles 783 and 7134,
    above referred to, end in view of,bther-.provi-
    sions~inthe uode.~ofCriminal Procedure, the
    aer+3nd~t may be confined to jell for such time
    es will rssult,ln dischargingthe.costs although
    hia punishment is other then a fine. notwlth-
    stehdinp:the fact that the case may be deoided
    under the provisionsof Article..799of the
    Code of Criminal Prooedure. providing that,
    where the defendant is oonvicted f     misdemeanor,
    and his punishment assessed et a &nt. he iiey
    be put to work, es spsclfied. or confined t
    jell for a sufficientlength of time to.disz
    charge the amount of tha fine end costs, retlng
                                                             528


Ron. R. T. Burns, Page 6


     such labor or imprisohmentet one dollar
     Inow three dolle ) P   d y since thi
     enactment should?8 c%i%d     in view If
     the aforementionedartloles." (undersoor-
     ing and brackets ours)
          The above quoted language from Texas Juris-
prudence is supported by end is hbaed upon the ceaes
of Ex Perte Polly, (Grim. Reports) 15 SW 2nd 16 end Ex
Perte Spiller, 63 Grim. Rep. 93, 138 SW 1013.
          Tim case of Ex Pert8 Polly, supre, Is perti-
culerly In point. In this cese the defendant we8 con-
victed of a misdemeanor in the County Court et Law 09
El Paso County end his punishmentassessed et imprison-
ment In the county jell for thirty days. The costs taxed
against him amounted to $185.55. He we8 pleoed in jell
on the 26th day of July end on the 30th day of.Dctpber
sought release by habeas corpus proceedingsbefore the
judge of the court in which he wes convicted. From en
order remending him the appellant prosecutedhis appeal.
          El Paso County had no workhouse, renn or pub-
lic improvementses ocmtempletedby Artlclss793 end 794,
0. G. P. upon which to work the county convicts. It was
contended by the appellant tn that oese that Article
993, c. c* P., related only to one whoso punishment hed
been assessed et a pecuniary fine, and because appellant*8
punishment was assessed et oonfinementin jell said
article had no epplioetion to his cese.
          The Court of CriminelAppeals of Texas, speek-
ing through Justioe Rewkins, in the Ex Perte~Polly oese,
stated that Articles 783, 784, 794, 796 end 796, C. C. P.
should be tnken Into considerationin connectionwith
M.'ticle793, C. C. F., end held that one convisted of
a misdemeanor end sentenced to imprisonmentmay be kept
for such further time beyond term of sentence as would
discharge costs et the rate of $1.00 per day. The judgment
Of the trial court wee affirmed.
          At the time of the rendition of the decision
in the Ex Pert8 Folly cese, supre, Article 793, C; C. P.,
~g?ided that the credit allowed for jell service, labor,
      should bs $1.00 per day. The rate now provided by
Art&e   793, C. C. P. is $3.00 per deg.  Artiole 920,
C. C. P. is appl5.cebleto convictionsof misdsmeanors in
the Justice Courts.
Hon. R. T. Burns, Page 7


          We oall your attentionto the raot that
&Mole 784, Code or Criminal Prooedure of Texas,
providee that the judgment ehall aleo adJudge the
oosts against the derendant,as well us provide for
punishment      F Under thla artiole hie punishment
may be by lmprieonmentin jail. Thie judgment must
eleo carry a judgment for the ooste against defendant.
The ooete adjudged against the defendant in a miede-
meanor case Includes the statutory   fess and mileage
of the ol’iioere  ~oonnectedwith the oase end are payable
primarily by the defendant. Artiole 1055, Code of
Criminal Procedure,   then provides that if the derendant
rails to pay his fine and lays it loutin the oounty
jail or dlaohargea the came by meana of working euoh
rine out as provided therein that the oounty shall be
liable for one-half of the fees of the offioers or the
court and that euoh half of ooets shall be paid by
warrant iertuedby the County Clerk, eta.
          We reel that Article 1055, G. G. P;, should
be construed in oonneotionwith Artlolea 783, 794, 785,
784, 793 and 798 of the Code or Criminal Prooedure.
          It was undoubtedlythe purpose or the Legisla-
ture In passing H. B. SOS, of the 46th Legislature,amend-
ing Artlole 1055, C. C. P. to aid orrioers having oosta
in mlademeanor oases, where the defendant‘rawy;;o;; pay
his oonts and laid or worked the lane out.
artlole 1055, C. C. P., the oounty would not be liable
for half costs and officers would get nothing where the
defendant laid out or worked out the oosts aeeesaed
against him in the judgment against him. Under the law
the Vinew goes to the oounty and the orfioer does not
have anypecuniary interest in it with the exoeptlon that
aome orrioers reoeive e small statutory oomdseion ror
oolleotlngsame.
           The term “fine”, teohfiioally
                                       speaking,means
the peouniary amount assessed by the aourt against a
defendant ror violation or law. A judgment in favor or
the State against a defendant ior a fine also carries a
JuUgment r0r the ooste. The term Vine” therefore, in
oommon parlanoe, is often used to mean both fine and ooata,
sin00 e judgment ror a rlne also carries a judgment for
the oosts.
Ron. R. T. Burne, Page 6


          We think it ie immaterialwhet&r or not the
judgment in a misdemeanor oase Is far rine and 00&s or
ror Imprisonmentand ooete. We t&Ink that the oounty
1s liable for half ooete-4n both inatanoeeabove to the
orrioer havim oosts in a miadameanor oaee where the
aererxlatirails to pay his fine end works or lays same
out?.
          You are, therarore, reapeotfullyadvleed that
it la the opinion or thle department that your question
should be enfmered in the affirmativeand it is 80 an-
8wert3a.
                                Very   truly yours
                            ATTORNEYGENERAL OF TJXX+IS


                                       “Ukn.J. Fanning -
                                             Amletant
