                          WNEY         GENERAL
                      P      EXAS




Honorable Joe Resweber       ~Opinion No. C-148
County Attorney
Harris County Courthouse         Re:   Construction and Application
Houston 2, Texas                       of Article 5118a, V.A.C.S.;
                                       Providing for Credit for
                                       Good Conduct for County Jail
Dear Sir:                              Prisoners
        By letter dated September 3, 1963, you have requested
an opinion of this office regarding the above matter, and
in connection therewith have presented the following three
questions:
           "1 . Is the use of $4.50 a day a legal
       basis for calculating,time to be served on
       fines,'and amounts remaining to be paid in
       cash?
            "2. Where a prisoner receives a 30 day
        jail sentence and a $90.00 fine, after a
        total of 30 days has been served in jail by
        a prisoner, Is not $45.00 the correct amount
        of fine remaining to be paid?
            "3. Where a prisoner receives a penalty
        of 30 days in jail, plus $150.00 fine, and
        $27.00 costs, can the prisoner serve out his
        sentence in full in 59 days?"
        All questions assume that maximum commutation of time
for good conduct is to be granted.
        The portion of Article 5118a relevant hereto is con-
tained in Section 1 thereof and reads as follows:
            "In order to encourage county jail disci-
        pline, a distinction may be made in the terms
        of prisoners so as to extend to all such as
        are orderly, Industrious and obedient, com-
        forts and privileges according to their
        deserts; the reward to be bestowed on prlson-
        ers for good conduct shall consist of such
        relaxation of strict county jail rules, and
                            -716-
Hon. Joe Resweber, page 2 (c-148 )


       extension of social privileges as may be con-
       sistent with proper discipline. Commutation
       of time for good conduct, industry and obedi-
       ence may be granted the inmates of each county
       jail by the -sheriffin charge. A deduction
       in time not to exceed one third (l/3) of the
       original sentence may be made from the term
       or terms of sentences when no charge of mls-
       conduct ,hasbeen sustained against the prlson-
       er. This Act shall be applicable regardless
       of whether the judgment of conviction is a
       fine or jail sentence or a combination of jail
       sentence and fine. 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 prisoner
       (Including escape or attempt to escape) any
       part or all of the commutation which shall
       have accrued In favor of the prisoner to the
       date of said misconduct may be forfeited and
       taken away by the she,rlff.~No other time
       allowance or credits in addition to the com-
       mutation of time for good conduct herein pro-
       vided for may be deducted from the term or
       terms of sentences. The sheriff shall keep
       or cause to be kept a conduct record in card
       or ledger form and a.calendar card on each
       inmate showing all forfeitures of commutation
       time and the reasons therefor."
        This statute must be construed together with Article
793, V.C.C.P. reading as follows:
           "When a defendant is convicted of a mis-
       demeanor and his punishment is assessed at a
       pecuniary 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 in the workhouse, or on the
       county farm, or public improvements of the
       county, as provided in the succeeding
       article; or if there be no such workhouse,
       farm or improvements, he shall be 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 ($3.00) Dollars for
       each day or fraction of a day that he has

                         -717-
Hon. Joe Resweber, page 3 ~(C-lrr8)



        served and he shall only be required to pay
        the balance of the pecuniary fine assessed
        against him."
        Article 61841, from which Section 1 of Article 5118a
was copied, and which, except for different methods of com-
puting credit for good behavior, reads exactly as Article
5118a, was construed by the Court of Criminal Appeals in Ex
parte Anderson, 192 S.W.2d 280. The Court held this statiil?e
t b       titutional, and stated the only limitation of the
pzwez %?ommutation   to'be that such must be earned by the
convict by his own conduct and may not be extended to him as
a matter of grace.
        This holding was followed by the Court in Rx parte
Baird, 228 S.w.2d 511, In which the Court also hela Ch t a
sentence of Imprisonment must actually be served in thz
manner prescribed by the judgment of conviction and the
sentence might not be satlsfled by constructive means, such
as service In the Federal Penitentiary.
        In Rx parte Stephens, 127 S.W. 819, It was held that
a sentence of Imprisonment must be served separately from
another portion of the same sentence providing for a fine.
Thus, in case of a sentence providing for both fine and
imprisonment, the two may not be lumped together 80 as to.
allow a prisoner to serve less than the term of imprison-
ment less his credit for good behavior.
        From these authorities your questions may be answered
as follows:
        1. The legal basis for calculating time to be served
on fines is, of course, $3.00 per day for each day served.
Assuming good conduct, the prisoner is entitled to a de-
duction, after the commutation time has been earned, of an
additional ,$l 50    d   t b dd     tdl      his original
fine. This metho~e~ll%    ",a%lF %eethizmof    the original
sentence to be deducted. The baa16 would be, for sentences
of lmpr~sonment, a one-half day deduction for each day of
good conduct.
        2.   This question Is answered in the affirmative.

        3. That portion of your third question relating to
court costs is answered in our Opinion C-144 mailed to you
on September 19, 1963. Where a nrlsoner receives a penalty
of 30 days In jail, plus a $15C.CCfine and $27.00 court

                          -718-
Hon. Joe Resweber, page 4 (C-l.@3).,~~-         .~



costs, the prisoner can serve out his sentence in 59-l/3 days,
provided he Is awarded a l/3 deduction for good Conduct.

                        SUMMARY
            1. The prisoner is allowed $3.00 per day
         for each day served together with $1.50 per
         day to be deducted from his original fine for
         good conduct, after It has been earned.
                Where a prisoner receives a 30 day
         jai:*sentence and a $90.00 fine, after serv-
         ing 30 days In jail and bein awarded~a l/3
         deduction for good conduct, $45.00 1s the
         correct amount of fine remaining to be,pald.

             3. Where a prisoner receives a penalty
          of 30 days In jail, plus $150.00 fine and
          $27.00 court costs, the prisoner can serve
          out his sentence in 59-l/3 days, provided
         the is awarded a l/3 deduction for good con-
          duct.
                            Very truly yours,
                            WAGQONER CARR
                            Attorney Qeneral of Texas



                               Assistant Attorney General
CRS:br
APPROVED:
OPINION COMMITTRE
W. V. Geppert, Chairman
Ben Harrison
Edward R. Moffett
Polk Shelton
Scott Garrison
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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