     OFFICE     OF THE    AlTORNEY    GENERAL     OF TEXAS
                              AUSTM




Honorable Harry Sohulte
County Attorney
Dallala County
D&hart,   Texas

Dear Sir8

                              of Criminal




                                                             stated



                                       3, Revieod Code
                                        when a defend-
                                         fsdemeanor ,and
                                 s Slno and Costs, and
                                          by levying   on
                                           exeoution,  but
                                         ch fine and
                         prisonment In jail,       is he
                          Cs8dit   on ‘hic Sine and
                                         .OO per day as
                                        ne Numbers
              O-338 and O-4417
                    “Considering   the language of Ar-
              tlole  793, Code ot Crhlnal      Fsooedure,
              readi%   ~3f he is unable to pay the
              fine and costs adjudged against him”
              in oonneotion with this state      of facts,
              it is rcy iupresalon,and    opinion that
Honorable     Harry Schultz,      Page 3


              your o@iniona were not rendered in oon-
              neotlon tith or meant to apply in suoh
              a 0886    ae related.”

           In the oaae OS Ex parte Guesie Ferguaon, deoldet.
October 86, 1939 (not.yet   reported),  the Court of Criminal
ADPeale. held $hat Artiole  793, Code OS Criminal Boo’edure,
ai-amended by Aots oS the Forty-Sir&     Legislature,   First
Called Seeslon, and Artlole    794a, 794b, 7940, and 7946,
Code OS Criminal Prooedure, are in oontravention      OS both
the State and Federal Constitutions,    and that the general
law providing Three ($3.00)   Dollar6 per day credit ie now
in effeot and of force in all the oountles in the Stnte
where a defendant is convicted    oS a misdemeanor, and hfs
punishment is assessed as a peounlary Sine.

              Artiole    793,   Code OS Criminal   Prooedure,   beiore
being   emended 2eads:as        follows:
                     When a defendant Is oonvioted    of
              a misdemeanor and his punishment is as-
              seased aa a peouniary Sine, ii he is un-
              able to:pay the fine and costs adjudged
              against him, he may for suoh time as
              will satiary the judgment .be put to
              work~in the workhouse, on the county
              farm, or pub110 improvements of the
              county,. as provided ln~ the sloceeding
              Article,   or IS there be no suoh work-
              house, farm or improvements, he shall
              be imprisoned In jail for a sufficient
              length OS time to diaoharge the full
              amount OS fine and costs adjudged
              against hImi rating suoh labor or lm-
              prisonmeat at Three ($3.00) Dollars
              for each day thereof.”
              Artiole    783, Code or Criminal     Procedure,   read8
as Sollowet

                     When the defendant is only fined
              the judgment shall be that the state of
              Texas reoover of the defendant the
              amount of such Sine and all oosts OS
              the,proseoution,   and that the defend-
              ant IS present,    be oommitted to jail
              unt i 1 such fine and costs are paid! or
              IS the defendant be not present,    that
              a oaplas forthwith   issue, commanding
Honorable      Barry Schultz,     Rage 3


               the eheriSS to arrest the defendant
               and commit him to jail’until  such
               fine and costs are paid; also, that
               exeoution  may issue against the prop-
               erty OS such defendant for the amount
               OS such fine and oosta.*
               Artdole   787,   Code OS Criminal   Prooedure,   providea
that1

                      Vihen a judgment- has been ren-
               dered against a defendant for a pe-
               ouniary fine,   if he ie present, he
               shall be imprisoned in jail until
               discharged. 8s~ provided by law.   A
               certified   oopy of auoh judgment shall
               be suffioient   to authorize  such im-
               prlsonment.”
               Artiole   785,   Code OS Criminal   Frooedure,   reads   as
r0i~ovje   t

                     Y/hen the judgment against a de-
               fendant is for a Sine and costs he
               shall be discharged  from the same:
                    “1. When the amount thereof       has
               been Sully. paid.
                     “2. When remitted     by the proper
               authority.
                      “3. When he has remained in cus-
               tody for the time required by law to
               satisfy   .the amount thereof .d

           It will be noted that the above mentioned atat-
utes provide that a judgment-for    a fine and.oosta may be
disoharged either by payment, by retiisslon    by the proper
authority,   or by remaining in custody for the time requirea’
by law to satisfy   the amount thereof,   that if the defend-
ant Is present and Sails to make payment he shall be lm-
prlsoned in jail until diaoharged a&provided      by law, and
that it he Is absent a oapias shall be issued for his ar-
rest, and that the judgment may be enforced by an exeoution.
           Referring to Title 15, Chapters 1 to 4, inolusive,
and other provisions  relating to oosts in orlmlnal oases,
and exeoution of judgment in such’caaes,  we quote from
Texas Jurispruaenoe,  Volume 11, p. 395, ae follows: .‘-
Honorable     Harry Sohultz,     Page 4


                      “Although a person may not be im-
               prlsoned Sor debt, It. has been held
               that ooats do not oonatltute       a debt
               within the meaning OS the oonetltution-
               al lnhlbltlon.-     In ever)! instanoe,   It
               has been held, oosta’are      paid, worked
               out, or oolleoted     in the same manner
               a.8 ‘the tine itself,   and form a part
               and paroel of the judgment.        Provision
               is made under all the statutes that re-
               late to the eubjeot for the enforoement
               of the collection     of oosts by lnoarcera-
               tlng the party in Jail, or working him
               on the publio road and highways, or in
               the pub110 work shops, or on the county
               poor Sanns, or by hiring him out, as
              .the case may be.      The person oonvloted
               OS a misdemeanor may, in lieu of pay-
               ment of ooats, remain In jail for a
               sufficient    length OS time to diaoharge
               the amount adjudged against him. . .
               Artiole    784 OS the Code OS Criminal
               Procedure provides ‘where the punish-
               ment is . . . other than a Sine, the
                judgment shall . . . adjudge the oosts
               against the defendant, and order the
               oolle?tion    thereof as in otper oases.”

            In view of this provision,      the State may reoover
the amount OS Sine and costs In the manner provided for,
whloh may include several methods.         It was intended by .the
use’of   the word WoolleotionW in the latter      part OS Article
784, supra, not to restrict      the colleotion   of costa to an
execution only, but to permit oollection        as in other mis-
demeanor cases.     Under Article   783, and Article    784, above
referred   to, and in view of further provisions       of the Code
of Criminal Prooedure,     the defendant may be oonflned to
jail for euoh time as will result in discharge of the oosts,
although the punishment Is other than a.fine,         notwlthstand-
ing the fact that the case may be decided under the provi-
sion of Article    793 OS the Code of Criminal PTooedure, pro-
viding that whore the defendant is convloted of a misde-
meanor, and. hls~ punishment asaeased at a fine, he may be
put to work, as specified,      or oonfined to jail for a suf-
Sioient length of time to discharge the amount of fine and
 oosts.
               Article   791,   Code or Criminal   Procedure,   reads a8
sollows   t
Honorable   Barry Schultz,   Page 5


                   *In eaoh oaee of peounlary fine, an
            exeoution may Issue tar the tine and
            costs, tho a oaplae ~was issued ror the
            defendant; and a oapias may issue ror the
            defende~nt tho an execution.was     issued
            against hia property.      The execution
            shall be colleoted    and returned as In    .
            civil   aotions.   When the exeoution has
            been oolleoted,    the defendant shall be     ,
            at once discharged;    and whenever the line
            and oosts have been legally     disoharged in
            any way, the exeoution shall be returned
            eatisried.”
            Article   919, Code or Crimiual   Prooedure,    pro-
vides   t
                  Pin eaoh case ot oonvlotlon     before.
            a justice rr04 which no appeal is taken,
            an execution    shall Issue for the colleo-
            tion of’ the fine and oosts, which shall
            be enforced and returned     in the manner
            presorlbsd   by’law in civil   aotions be-
            r0re juati0ea.n~

           The last two statutes above quoted do not author-
ize the iasuanoe of an exeoution     against the property of a
deiendant:who was present at the time the fine was imposed;
and an order committing the defendant to the oounty la11
until the fine and coats have been paid and direoting      an
eseoution  to isaue’ltit the same time is erroneous.    This
oontentiau is upheld by the oase of O’Conner vs.. State, 40
Texr .27, by the following   language:
                  We belleve   the judgment of the
            oourt oommitting the dsiandsnt to the
            oounty jail until the fine and oosta
            were paid, and direofing    execution to
            issue  theretor  at the same time, wss
            not authorized by law or sanctioned
            by the prs.otlce or the courta,    end
            proaume it was an error of the olerlc
            to whioh the attention    of the court
            was not called.”
            In the 0868 of 3% part& Smith,      8 S.W. (2d) 139,
we   find the following language:
 Ronorqble     Harry Schultz,      Page 6


                   “One convloted of a misdemeanor
              my, under the provisions    of Article
              793, Code ot Criuinnl Prooedure, lay
              out his flue and,costs   in jail.”
            Referring to Artiole 787, Code of~criminal   Pro-
 cedure, supra, we ‘quote from Texas Jurisprudence,  Volume
 10, pc 650, as follows:
                     “Just as the primary objeot 0)
               the imposition OS a fine is puuish-
               sient, so the princi.pal   purpose of the
               imprisonment authorized by this stat-
               ute is not so much to enforce payment
               us to insure puuishinent.     The iupris-
               orment oontmplated     by the statute    is
               Incarceration  in jail,    unless the
               conviot lo psrzittcd     to work out his
               fine in enother place.      The duration
               of the term of imprisouaent is the
               same in either   CBBe,*

             &here the judgment against defendant is for fine
  and Costa, he shall    be discharged from the some when the
  emuut thereof has been fully paid, r;hen remitted by the
  proper authority,    or %hen he has remAned in custody for
  the time required by law to satisry     the amount thereof,  end
  the person convicted    of a mlsdeueanor my, in Lieu of pay-
. ment or costs,    ramin in jail for sufricient   length of tine
  to discharge the amount adjudged agaain5t him,
              In view of the foregoing   authorities,   you are re-
 spectrully    advised that it is the opinion of this depart-
 ment that when a defondant is convicted       of a misdezanor
 and is able to pay his Pine and CoEtB he my eleot to sat-
 isfy the same by imprisouuent in jail,       and if the defend-
 ant does elect to satisfy     his fine aud coots by imprison-
 ment in jail he is entitled      to Q credit on such fine and
  costs at the rate of $3.00 per day.       However, this opinion
 Is not to be considered as construing       the application   of
 Article    Q20, C. C, P., which relates    to Justice Courts’.   Yie
  are enclosing    a copy of our opinion No. 1015 which construes
  Article    020,   C.   C.   P.

               Trusting       that the foregoing   fully   answers your
Zionorable F&wry Schultz,   Page I


inquiry,   we remaln

                                            Yours~   very     truly




                                          LiLd-aLL
                                     BY
                                                     Ardell    Jl'illiame
                                                              ASSiStWIt
