                     December 10, 1952

Hon. Darwin L. Wilder        Opinion No. V-1548
County Attorney
Denton County                Re: Authority of a constable
Denton, Texas                    to accept bond before
                                 trial from a prisoner
                                 who has been placed in
                                 county jail in the aher&
                                 iff's custody and his
                                 authority to accept such
                                 prisoner's fine after
Dear Sir:                        conviction.
          Your request for our opinion concerning mis-
demeanor cases reads In part as follows:
          "(1) May a constable, after a prisoner
     has been placed in the County Jail in cuato-
     dy of the sheriff, accept bond before trial?
     (2) After conviction and while prisoner is in
     jail and custody of aherlfftlmay the constable
     accept fine and commission?
          "FACTS: The sheriff and constable are
     in disagreement as to who should accept
     bond or receive credit (commissioner) for a
     fine in misdeameanor cases, usually D.W.I.
     and liquor violations. The sheriff, as
     custodian of the jail and prisoners, thinks
     that the constable should not be allowed to
     approve the bond and release the prisoner.
     He further thinks that whenthe man has been
     convicted and placed in jail to lay a fine
     out, but later his friends pay him out, that
     he, the sheriff, should be the proper person
     to receive the fine and collect the commission."
            Article 5116,   V.C.S., provides in part:
          "Each sheriff is the keeper of the jail
     of his county. He shall safely keep therein
     all prisoners committed thereto by lawful
     authority, subject to the order of the proper
Hon. Darwin L. Wilder, page 2 (V-1548)



     court, and shall be responsible for the
     safe keeping of such prisoners. 0 D ."
          Article 42, V.C.C.P., provides:
          "When a prisoner is committed to jail
     by warrant from a magistrate or court, he
     shall be placed in jail by the sheriff, It
     is a Violation of duty on the part of any
     sheriff to permit a defendant so committed
     to remain out of jail, except that he may,
     whena defendant is committed for want of
     bail, or when he arrests in a bailable case,
     give the person arrested a reasonable time
     to procure ball; but, he shall ao guard the
     accused as to prevent escape."
          Clearly a constablesmay accept and approve a
bond In a misdemeanor case where he makes the arrest
after a warrant is issued and before the defendant Is
placed in jail. Arts. 270 et seq., 286, 454, V.C.C.P.
However, after the defendant has been placed in jail
we believe the above quoted statutes confer exclusive
jurisdiction in the sheriff of all prisoners who have
beenplaced in his custody and lodged in jail. There-
fore, it Is our opinion that a constable may not accept
bond before trial of a defendant charged with a mia-
demeanor after the prisoner has been placed In the
county jail in custody of the sheriff.
          The statutes which are'pertinent to your
second question are Articles 787, 788, 789, 795, 796,
797, and 783, V.C.C.P. and provide aa followa:
    Art. 787. %hen 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 authorize such imprisonment."
     Art. 788. %hen 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."
Hon. I$rwin L. Wilder,   'page3 (V-1548)


     Art. flg.,%here such capiaa issues, it shall
     state the rendition and amount of 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 defendant is
     otherwise legally discharged."

     Art. 795. ?ihen, by the judgment of the court,
     a defendant is to be imprisoned in jail, a
     certified copy of such judgmerkshall be suf-
     ficient authority for the sheriff to place
     such defendant in jail."
     Art. 796. "A capias issued for the arrest
     and commitment of one convicted of a raiade-
     meanor, the penalty of which or any part there-
     of Is imprisonment in jail, shall recite the
     judgment and command the sheriff to place
     the defendant in jail to remain the length of
     time therein fixed; and this writ shall be
     sufficient to authorize the sheriff to place
     such defendant in jail."

     Art. 797. "A defendant who has remained in
     jail the length of time required by the judg-
     ment shall be discharged. The sheriff shall
     return the copy of the judgment, or the
     capiaa under which the defendant waa imprisoned,
     to the proper court, stating how It was execut-
     ed."
     Art. 783. "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 coatsof the prosecution and
     that the defendant, if present, be committed
     to jail until such fine Andycoats are paid;
     or if the defendant be not present, that a
     capiaa forthwith issue, commanding the sheriff
     to arrest the defendant and commit him to jail
     until such fine and coats are paid; also, that
     execution may Issue againstthe property of
     such defendant for the amount of such fine
     and costs.'
Hon. Darwin L..Uilder, page 4 (v-1548)


          It is seen from the above statutes that the
sheriff is required to imprison the defendant in such
a case upon a commitment being issued. The "commit-
ment" which the sheriff exe,cutesin such cases Is a
certified copy of the judgment, if the defendant is
present, as provided in Article 787, aupra. If in
such a case the defendant is not present, the "capias"
as authorized by Article 788 and 78g1 supra, is iaaued
and is the commitment.
          It would appear that the sheriff has exclu-
sive custody and jurisdiction ,ofsuch prisoners placed
in his custody and lodged in the county jail. Further,
he is required by Article 797, aupra, to make a return
to the proper court showing how the c mmitment has been
executed. The sheriff and his bondam    are liable on
the sheriff's official bond~for the fin
                                     k .and costs until
they are~paid or otherwise~legally discharged in such
casea. Spradley v. State, 56 S.W. 114 (Tex.Civ.App.
1900, error ref.). Since the sheriff is liable for
the collection of the fine and coats-and further since
he is required by Article 797, supra, to make a return
showing how the commitment has been executed, we agree
with you that the sheriff is the proper person to
collect the fine and costs in misdemeanor cases where
the defendant has been',placedin the county jail, and
the constable is unauthorized to collect same. In such
cases the sheriff receives credit for the release
fees.
                        S-Y
          When a prisoner charged with a miade-
     meanor haspb&en arrested by a constable
     and placed in county jail in the custody
     of the sheriff, the sheriff is the proper
     person to accept and approve bail bond
     pending trial. Art. 42, V.C.C.P.
          After the defendant has been convicted,
     given a fine, and placed in jail for failure
     to pay the fine, the sheriff is the proper
,Hon.Darwln L. Wilder, page 5,   (v-1548)


     person to accept the payment of the fine
     and receive credit for release fee when
     the payment is made.
                                  Yours very truly,
APPROVED:                           PRICE DANIEL,
                                  Attorney General
J. C. Davis, Jr.
County hffalr8 DlvLaion
Mary K. Wall                      BY
Reviewing Assistant                    &-uce Allen
                                        Assistant
Charles D. Mathews
First Assistant
