                                                    .4&.@&      c-/IpLf

                                May 2,   1962


Honorable  Brandon Bickett               Opinion   No. WW-1326
County Attorneys
Blanc0 County~ Courthouse                Re:    Authority    of a sheriff  to
Johnson City,   Texas                           grant one-third    commutation
                                                of time for good conduct to
                                                a jail   prisoner  who is serv-
                                                ing out his fine,     and relat-
Dear Mr. Bickett:                               ed questions.

       In your   letter   you asked   the   following    questions:

                 “Whether it is legal    for the
            Sheriff   in charge of a County Jail
            to grant one-third   commutation of
            time for good conduct to an inmate
            or prisoner   who is in jail    serving
            out his fine in the same manner as
            he would grant such commutation of
            time to an inmate or prisoner       who
           ,is In jail   serving out his jail
            sentence.

                 “Also,   in this connection,
            whether the Sh.eriff    in cha.rge has
            the sole discretionary     power to
            grant such commutation of time, or
            must he be required     to obtain per-
            mission    or consent  of the Judge of
            the Court in whrch the prisoner      or
            inmate has been convicted.

                 “And, further,     does the County
            Judge, or the Sheriff,      have charge
            and control   of the collection     of
            a fine assessed     by, the Judge?”

       Your opinion      request   further  advises   us that the prisoner
In  question   was charged with the offense         of “unlawfully   hunting
deer from an automohtle,”         and after  pleading    guilty  was assessed
a fine and court cosbs.          Being unable to pay his fine,      he then
served a portion      of his fine in jail     until   being released    by
the Sheriff,     purporting    to act under Article      5118a, Vernon’s
Civil’ Statutes.
Honorable    Brandon            Bickett,        Page 2                      Opinion   No. ~~-1326



       Article          5118a,         V.C.S.     reads    as follows~

                   “In order to encourage            county jail
             discipline      a distinction        may be made
             In the term of prisoners             so as to ex-
             tend to all such as are orderly,                 indus-
             trious     and obedient,       comforts     and privi-
             leges according        to their      deserts;     the
             reward to be bestowed on such prisoners
             for good conduct         shall    consist     of such
             relaxation      of strict      county jail       rules,
             and extension       of social      privileges       as
             may be consistent         with proper discipline.
             Commutation of time for good conduct,
             industry      and obedience      may be granted
             the inmates       of each county jail           by the
             sheriff     In charge.      A deduction         In time
             not to exceed       one third      (.1/3)   of the
             original      sentence    may be made from the
             term or terms of sentence             when no charge
             of misconduct       has been sustained           against
             the prisoner.        A prisoner       under two (2)
             or more cumulative         sentences       shall    be
             allowed     commutation as if they were
             all one sentence.          For such sustained
             charge of misconduct           In violation       of
             any rule known to the prfsoner                (lnclud-
             lng escape or attempt to escape)                 any
             part or all of the commutation which
             shall have accrued         In favor of the prl-
             soncr to that date of said misconduct
             may be forfeited        and taken away by the
             sheriff.       No other time allowance            or
             credits     in addition      to the commutation
             of time for good conduct herein provided
             for may be deducted          from the term or
             terms of sentences.”

      Art.       785,         C,C.P.     reads:

                 “When the judgment against a defen-
             dant is for a fine and costs he shall
             be discharged from the same:

                        “1.      When the amount there              has been
                                 fully paid.

                        ” 2.     When remitted            by the   proper
                                 authority.
Honorable        Brandon     Bickett,      Page 3                     opini,on     NO. .ww-1326



                      ” 3.     When he has remained in custody
                               for the time required  by law to
                               satisfy the amount thereof.”

         In the event the defendant,        who has been assessed          a fine            .
and cost,    refuses     or is unable to pay the same, he may “lay
out” such fine and costs          at the rate of $3.00 per day, until
the fine and costs are satisfied.             If, after     entering    the jail
and serving     one or more days, he is able to raise              some money
to apply on the fine and costs,           he will receive       credit    on such
fine    and costs   at the rate of $3.00 for each day served,                and
Is only required       to pay the balance due In order to secure his
release.     Art.   793,   C.C,P,    The punishment assessed          against
such defendant      never consisted      of a term in the county jail.
He is only there by reason of his failure              to pay the fine and
costs.     His release     may be secured     at any time by payment of
the balance due on the fine and costs,             either    by himself      or
paid for him by his friends          or relatives.       Since his punishment
only consists      of ~a fine and costs,      to bring him within the pro-
visions    of Article     5118a, V,C.S,,    would be to permit the sher-
iff    to remit a portion      of a cash fine,     which Art. 5118a does
not purport     to do.     In answer to your first        question,     we hold
that Article      5118a, V.C.S.     has no application       to a prisoner       in
the county jail       whose sole punishment is a fine and costs,                and
who is “laying      out” the same S

          Attorney     Oeseral’s        Opinion     No.   ~-91.8   states   that    under
Article     5118a,     V,C.S.:

                                 the sheriff     is given the
                 discr&iioi       of giving    a prisoner   a
                 deduction      la time even though he
                 has a record       of good conduct.       This
                 simply means that where a prisoner
                 has an unquestioned         good conduot
                 record,     the sheriff     is not under a
                 duty to release        him In less time than
                 called     for in the sentence.        . . .‘I

        The sheriff     is the custodian      of prisoners   in the county
jail.    Art.   265, C,C.P.       Art.  5118a, V,C.S.    was enacted to
assist   the sheriff      in maintaining    proper discipline     In the
         We hold     therefore       in answer to your second question,
%?t*the     sheri>f   has the iole discretion        under Art,. 5118a,
V,C.S.   la granting      commutation of time of those prisoners         lr
his custody     serving     jail  terms in the aounty jail.       The judge
of the court In which the prisoner            was convicted   has no powers
or authority     under Art.      5118a, V.C,S,

          Art.    1616,      V.C.S.     read.s:
Honorable   Brandon    Blckett,    Page 4                      Opinion    NO. ~~-1326


                  “An account      shall    be kept with
            th.e sheriff      charging    him with all
            judgments,      fines,    forfeitures     and
            penalties,      payable to and rendered
            inany      court of the county,        the col-
            lection     of which he is by law made
            chargeable.        The sheriff      my free him-
            self    from liability       from such charge,
            by:

                 ” 1 . Producing    the receipt   of the
            county treasurer     showing the payment
            of such judgment,     fine forfeiture    or
            penalty.

                 “2.  Showing to the satisfaction
            of the commissioners    court that the
            same cannot be collected,     or that the
            same has been discharged     by imprison-
            ment or labor,   or by escape,    without
            his fault  or neglect,    and obtaining   an
            order from said court allowing       the same.”

         In Bradley v, State,    56 S.W. 11.4 (Civ.App.,     1900, error
refused),     the Court permitted    recovery    from a former sheriff    and
his bondsmen for fines       and costs   assessed    against defendants   in
the county court,      which it was alleged      that the sheriff   had wil-
fully    neglected   and refused  to collect.       The Court reviewed
Articles     838 and 839, Revised Statutes       of 18% (now Article     1616,
V.C.S,),     and stated at page 116:
                  II        The cow&y judge had no:
            authority’to       direct   the release   of
            the parties      without a discharge      of
            the judgments against          them In one of
            the modes provided         by law.   The power
            to remit     fines    is given by law to the
            governor     alone.     0 . . These provisions
            of the Revised Statutes          as well as of
            the Code of Criminal Procedure           were
            enacted for the purpose of compelling
            the sheriff      to do his duty in the col-
            lection    of fines,      and were made plain
            to meet just such cases as the pre-
            sent.    Q D .”

       Attorney     General.‘s    Oplnioa   No.    o-3262   (1941)   states:

                    “You are respectfully         advised  that
            it    is the opinion    of this       department
.     .




    Honorable   Brandon      Bickett,    Page 5                      Opinion     No. ~~-1.326


                that you should ordinarily            look to
                the sheriff   or constable         as the case
                may be for the collection           of fines
                and costs   ir misdemeanor         cases."

           In answer       to your third    question,     we hold       that the sheriff
    is charged with        the collection    of fines     assessed       In the county
    court.

                                        SUMMARY

                     Art. 5118a, V.C.S.,  which authorizes
                a sheriff  to grant commutation of time to
                prisoners  In the county jail  for good con-
                duct, has no application   to a prisoner   whose
                sole punishment consists   of a fine and costs,
                and who is laying   out the same in jail.

                     The sheriff   has the sole discretion   under
                Art.  5118a,  V.C.S.  in granting  commutation   of
                time of those prisoners     in his custody  serving
                jail  terms in the county jail.

                         The sheriff   is charged with the         collection
                 of    fines  assessed   in county court.

                                            ,, Yours    very   truly,

                                              WILL WILSON
                                              Attorney' General          of   Texas




                                              -"   Riley Eugene Fletcher
                                                   Assistant



    APPROVED:

    OPINION CONMITTE:
    W. V. Geppert, Chairman

    Marvin  Sentelle
    Wm. Ii. Pool,    Jr.
    Malcolm L. Quick

    REVIEWEDFOR THRATTORNEX GENgRAL
    BJr: Houghton Brownlee, Jr.
