           I"~EATTOIENEY                          GENERAL
                           OF    TEXAS
                           AUSTIN     1s.TwAe
                          September     19, 1963




Honorable Joe Resweber                      Opinion No. C-144
County Attorney
Harris County Courthouse                    Re:   Construing H. B. 413, 58th
Harris County                                     Leg. relating to court costs
Houston, Texas                                    in the Commutation of Time
                                                  and Other Privileges   Granted
                                                  Inmates of the County Jail
Dear Mr. Resweber:                                for Good Conduct

         Your letter requested an opinion from this office construing
H. B. 413, enacted into law by the 58th Leg., R. S., 1963, Ch. 371, Page
943, as Article 51180, Vernon’s Civil Statutes. Your question was:

               “Does this Act apply to or include court
         costs where the judgment of conviction is for
         the payment of a fine and court costs?”

         Article   5118a, as amended reads as follows:

                “Section 1. In order to encourage, county
         jail discipline, a distinction may be made in the                   . -..,.
         terms of prisoner8 so as to~extend to all such as
         are orderly, industrious and obedient, comforts
         and privileges   according to their deserts; the re-
         ward~to be bestowed on prisoners for good con-
         duct shall consist of such relaxation of strict
         county jail rules, and extension of social privileges
         an may be consistent with proper discipline.        Com-
         mutation 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      (l/3) of the original sen-
         tence may be made from the term or terms of aen-
         tences when no charge of misconduct has been sus-
         tained againrt the prisoner.      This Act shall be
         applicable regardlese     of whether the judgment of con-
         viction is a fine or jail sentence, or a combination of


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    Honorable     Joe Resweber,     Page 2 (No. C-144)


                jail sentence and fine. A prisoner under two (2)
                or more cumulative senten 1es 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 es-
                cape 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 sheriff.    No other
                time allowance or credits in addition to the commu-
                tation of time for good conduct herein provided for
                may’be deducted from the term or terms of sen-
                tences.   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.

                       “Section 2, All laws or parts of laws in con-
                flict with the provisions of this Act-are hereby re-
                pealed.
                                                  i
                       “Section   3. . . . .

                       “Section 4. The fact that the Attorney General
                of the State of Texas’ in Opinion No. WW-1326, dated
                May 2, 1962, ruled that the present Act does not em-
                power the sheriff to grant commutation of sentence
                for good conduct to a county jail prisoner who is serv-
                ing time in jail in lieu of payment of a fine, thus work-
                ing an injustice and inequity against such prisoners
                who may be deserving of consideration      because of
                orderly, obedient and industrious conduct, creates an
                emergency and an.imperative      public necessity.that
                the Constitutional Rule requiring bills to be read on
                three several days in each House be suspended, and
                said Rule ia hereby suspended, and that this Act shall
                take effect and be in force from and after its passage,
                and it is so enacted.”

             Article     783, Vernon’s     Code of Criminal   Procedure,   reads in
    part as followa:

                       “When the d,efendant is only fined the ,judg-

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Honorable     Joe Resweber,       Page   3 (No. C-144)


            ment shall be that the State of Texas recover of
            the defendant the amount of such fine and all costs
            of the prosecution, and that the defendant, if pre-
            sent, be committed to jail until such fine and costs
            are paid; . . . . ” (Emphasis supplied)

            Article     784, Vernon’s    Code of Criminal     Procedure,   reads as
follows :

                   “If the punishment is any other than a fine,
            the judgment shall specify it, and order it enforced
            by the proper proress.    It shall also adjudge the
            costs against, the defendant, and order the collec-
            tion thereof ao in other cases.”

            Article     785, Vernon’s    Code of Criminal     Procedure,   reads as
follows:

                   “When the judgment against a defendant is
            for a fine and cos,ts ,he shall be discharged from
            the same:

                      “1.   When the amount thereof      has been fully,
                            paid.

                      “2.   When remitted   by the proper     authority.

                      “3.   When he has remained in custody for
                            the time required by law to satisfy the
                            amount thereof.” (Emphasis supplied)

            In Ex Parte       Mann, 46 S.W. 828 (Tex.       Crim.;l898),   the Court
said:

                   “The whole the’ory of the law in Texas with
            reference  to the enforcement of fines in misde-
            meanor convictions, includes costs as a part and
            parcel of the judgment.”   (Emphasis supplied)

         And Tex. Jur. 2d, Vol.           25, Payment    of Coots, Section 12, Page
333, reads as follows:



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Honorable     Joe Resweber,   Page 4 (No. C-144)


                   “Costs assigned against a Defendant
            must be satisfied before the Defendant can
            be discharged    from a judgment’for a’fine.
            This is also true of a judgment of a,justice
            court. The enforcement of fines in misde-
            meanor convictions includes costs as a
            part of a judgment and rhe convict is not
            entitled to release from custody until he
            has satisfied both fine and costs.”
                                                      .
            (Emphasis supplied)

          The 58th Legislature   clearly expressed their reasons for, the
intents and purposes of, and the objective desired in amending Article
5118a Vernon’s Civil Statutes. .They were definitely in a beneficent mood
and were determined to restore clemency benefits to a certain class of
jail .inmatis who had ,been deprived, of the same by Attorney General’s
Opinion No. WW-1326, 1962, which in our opinion was the correct interpre-
tation of the law as then written.

          Your question and.,request for an opinion on amended Article
5118a sterna from the language used by the Legislature   contained in Set-
tion 1 thereof, or to be more accurate and specific, you are concerned
about the omission of certain words fram the pertinent 3rd sentence of
Section 1, which reads:

                   “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.”

          The omission from the above. of the usual words “court costs”
or ‘“costs” ‘which have heretofore   beerr ueed .consistently in provisions
or decisions relating to penalties of fines or jail sentences does pose a
question. However, the error appears inconsequential in view of the well-
grounded law covering this wubject.

           Statutory laws, court decisions and other authorities either de-
 clare or subscribe to the principle of law that in a’judgment of convic-
-tion for a misdemeanor    offense carrying a penalty of a fine or jail term
 sentence that “court costs” are part and parcel of,such judgment, and
 that in the enforcement thereof, the total sum of the fine and costs therein,
 or the total length of the jail term sentence and costs are considered as
 a whole to be satisfied before a discharge or release from same is in or-
 der. Therefore,    we hold that this Act does apply to and include “court

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Honorable   Joe Resweber,   Page   5 (No. C-144)


costs” where a judgment of conviction      is for the payment of a fine and
court costs.


                             SUMMARY

         Article 5118a, Vernon’s Civil Statutes,   as amended
         authorizes county sheriffs to award prisoners the
         commutation of time up to one-third     (l/3) of the
         original sentence for good conduct, industry, and
         obedience and makes same applicable regardless
         of whether the judgment of conviction is a fine or
         jail sentence, or a combination of jail sentence or
         fine. This Act does apply to and include court
         costs where the judgment of conviction is for the
         payment of a fine and court costs.


                                           Yours    very truly,
              .

                                           WAGGONER CARR
                                           Attorney General of Texas




                                           BY
                                                Edward R. Moffet
                                                Assistant Attorney   General

ERM:nf

APPROVED:

OPINION COMMITTEE
W. V. Geppsrt, Chairman
Linward Shivers
Brady Coleman
Ben Harrison
Pat Bailey

APPROVEDFOR      THEATTORNEYGENERAL
BY:  Stanton Stone



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