L   .




                TEEAITORNEY               GENERAL
                              OFTEXAS




        Honorable E. L. Hinson. Jr.
        County Auditor
        Polk County
        Livingston, Texas
        Dear Sir:                Opinion No. O-4924
                                 Re: Fees of office--Justice~of the,
                                      Peace--Constables--Article 1055
                                      C. C. P.--Proration of costs and
                                      other related matters.
                Your request for opinion upon the following stated
        questions:
               "(1) Under Article 1055 of the Code of Crim-
           inal Procedure, ana according to your recent
           Opinion, which holds the county liable to each
           officer and witness having cost in a misdemeanor
           case for only one-half thereof where the defend-
           ent has satisfied the fine and~costs adjudged
           against him in full by labor in the'workhouse or
           public roads of county or serving same in jail,
           is the county to pay the Justice of the Peace or
           Constable or other officers their fee at the time
           of conviction or when the defendent has satisfied
           his fine in full by labor or laying same out in
           jail.
               "(2) Where a defendent pays part of his fine
           and works or lays the balance out in jail, dent
           the different fee officers get that part of cash
           payment by percentage'basis. I mean by this that
           the Fine, Fee, County Attorney, County Clerk,
           Sheriff or Constable should get their per cent of
           the part payment on the fine and then the unpaid
           part will be paid out of the Road & Bridge Fund
           as one-half fee.
               "(3) Where a defendent has been convicted
           and has been assessed a fine in the Justice of
           Peace Court, can'the Justice of the PeaCe turn him
           loose or discharge him with the promise that the
           defendent will pay fine or should he turn him over
           to the Sheriff until fine is paid or the defendent
Honorable E. L. Blnson, Jr., page 2         O-4924


    is permitted to work out fine. Can the Justice of
    the Peace commit the defendent to work out his fine
    with the county work house or on the county Roads
    or should not the Justice of the Peace commit him
    to the eheriff and,then the sheriff would see that
    he works out the fine or lays same out in jail."
        Article 1055, Vernon's Annotated Texas Code of Crim-
inal Procedure, reads as follows:
        "The aounty shall not be liable to the officer
    and witness having costs In a misdemeanor case
    where defendant pays his fine and costs. The coun-
    ty shall be liable for one-half of the fees of the
    officers of the Court, when the defendant fails
    to pay his fine and lays his fine out in the coun-
    ty jail or discharges the same by means of working
    such fine out on the county roads or on any county
    project. And to pay such half of costs, the Coun-
    ty Clerk shall issue his warrant on the County
    Treasurer in favor of such officer to be paid out
    of the Road and Brlaae Fund or other funds not
    otherwise approprlat&l. As amended Acts 1937,
    45th Leg., p.       ch. 488,~l ; Acts 1939, 46th   .
    Leg., p. 143, 13231,
                  191.
        Article 1052, Vernon's Annotated Texas Code of Crimi-
nal Procedure, provides for the payment of certain fees to
the County Judge and Justice of the Peace by the county and
reaas as follows:
       "Three Dollars shall be paid by the county
   to the County Judge, or Judge of the Court at Law,
   and Tvo Dollars and fifty cents shall be paid by
   the county to the Justice of the Peace, for each
   criminal action tried.and finally disposed of be-
   fore him. Provlded;however, that in all counties
   having a population of 20,000 or less, the Justice
   of the Peace shall receive a trial fee of Three
   Dollars. Such Judge or Justice shall present to
   the Commissioners' Court of his county at a regu-
   lar term thereof, a written account specifying
   each criminal action ln which he claims such fee,
   certified by such Judge or Justice to be correct,
   and filed with the County Clerk. The Commission-
   ers' Court shall approve suah account for such
   amount as they find to be correct, and order a
   draft to be issued upon the County Treasurer in
   favor of suoh Judge or Justice for the amount so
   approved. Provided the Commissioners' Court shall
Honorable E. L. Hinson, Jr., page 3         O-4924


    not pay any account or trial fees in any case
    tried and in which an acquittal is had unless the
    State of Texas was represented in the trial of
    said cause by the County Attorney, or his assist-
    ant, Criminal District Attorney OP his assistant,
    and the certificate of said Attorney is attached
    to said account certifying to the fact ,thatsaid
    cause was tried, and the State of Texas was repre-
    sented, ana that in his judgment there was suffi-
    cient evidence in said cause to demand a trial of
    same. (As amended Acts 1929, 41st Leg., p* 239,
    c~h.104, 8 1; Acts 1929, 41st Leg., 1st C. S., p9
    155, ch. 55, LI10)"
        The fees of the Justice of the Peace and County Judge
for their services in trials of misdemeanor cases, both on
pleas of guilty and contested cases, are payable by the county
as provided by Article 1052, V.A.C.C.P., supra, Opinion No.
O-616 of this department holds, among other things that inso-
far as the Justice's and County Judge's fee are concerned the
manner in wb,ich judgments in misdemeanor cases are satisfied
is immaterial and that the Judge or Justice is entitled to be
paid by the County the full fee as provided by Article 1052,
V.A.C.C.P., for each criminal action tried and finally disposed
of by him, regardless of whether the fine and costs are ever
collected or satisfied, In other words the right of the Judge
or Justice to his fee under Article 1052, V.A.C.C.P., does not
depend upon the collection or satisfaction of the fine and
costs, and is a fee not collected from the defendant upon con-
viction but is strictly a fee to be paid the Judge or Justice
by the county.
        Trial fees are assessed under the provisions of Arti-
cle 1074, Vernon's Annotated Texas Code of Criminal Procedure,
which reads as follows:
        "In each case of conviction in a county Court,
    or a County Court at Law, whether by a jury or by
    a Court, there shall be taxed against the defendant
    or against all defendants, when several are held
    jointly, a trial fee of Five Dollars, the same to
    be collected and paid over in the same manner as
    in the case of a jury fee, and in the Justice Court
    the trial fee shall be the sum of Four Dollars.
      s amended Acts 1929  41st Leg
    iAl Acts 1929 41s'cieg., 1st 6'. g:,4z6'l$'
                                            *   f z?'-
    56,k.   )"    f
        Article 1065, Vernon's Annotated Texas Code of Crimi-
nal Procedure, provides certain enumerated fees for sheriffs
Honorable E. L. Hinson, Jr., page 4            O-4924


and other peace officers (Including constables) who perform
services in misdemeanor cases, to be taxed against the de-
fendant on tionviction. Article 1061 and Article 1068, Ver-
non's Annotated Texas Code of Criminal Procedure, provide,
among other things, certain enumerated fees for county ettor-
neys to be taxed against the defendant on conviction.

        Articles 783, 787, 788, 789, 793, 794, 795, 797 and
920, Vernon's Annotated Texas Code of Criminal Procedure,
read as follows:
        "Art. 781.   (8671   (845) As to fine
        "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 costs of
    the prosecution, and that the defendant, if present,
    be committed to jail until such fine and costs are
    paid; or if the defendant be not present, that a
    capias forthwith issue,'commanding the sheriff to
    arrest the defendant and commit him to jail until
    such fine and costs are paid; also, that execution
    may issue against the property of such defendant
    for the amount of such fine and costs."
        "Art. 787.   (871)   (849)   Pay or jail
        "When 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,,authorizesuch
    imprisonment. (0. C. 694, 695.)
        "Art. 788.   (8721   (850)   If defendant is absent
        "When 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."
        "Art. 789.   (8771   (851)   Capias shall recite what

        "Where such capias issued, it shall state the
    rendition and amount of the 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 defend-
    ant is otherwise legally discharged. (0. c. 700.)"
Honorable g. L. Rlnson, Jr., page 5          0 -4924


        "Article 791.   (878)   (856) Fine discharged
        "When a defendant is convicted of a misde-
   meanor and his punishment is assessed at a pecun-
    iary 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 Fn
   the workhouse, or on the county farm, or public
   improvements of the county, as provided in the suc-
   ceealng article, or Lf there be no such workhouse,
   farm or improvements, he shal,lbe 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
   Dollars ($3.00) for each day thereof. As amended
   Acts 1927, 40th Leg., 1st C. S. p. 194     g* $f,
   8 1; Acts 1934, 43rd Leg., 2nd t. S., p: 6      *
   33, 3 1."
        "Art. 794.   To do manual labor
       "Where the punishment assessed in a convlc-
   tion for misdemeanor is confinement in jail for
   more than one day, or where in such convFctFon
   the punlshment Is assessed only at a pecuniary
   flne and the party so convlcted is unable to pay
   the fine end costs adjudged against him, those
   so convicted shall be required to do manual labor
   in accordance with the provisions of this article
   under the following rules and regulations:
       "1. Each commissioners court may provide for
   the erectlon of a workhouse and the establishment
   of e county farm In connection therewith for the
   purpose of utilizing the labor of said partles so
   convicted.
       "2. Such farms and workhouses shell be under
   the control and management of the commissioners
   court , end said court may adopt such rules and
   regulations not inconsistent with the laws as they
   deem necessary for the successful management and
   operation of said institutions end for effectively
   utlllsing said labor.
       "3. Such overseers end guards may be employed
   under the authority of the commissioners court as
   may be necessary to ,preventescapes and to enforce
   such labor, and they shell be paid our of the county
   treasury such compensation as said court may prescribe.
Honorable E. L. Rinson, Jr., page 6          O-4924


       “4. Those so convicted shall be so guarded
   while at work as to prevent escape.
        “5. They shall be put to labor upon the pub-
    lic roads, bridges or other public works of the
    county when their labor cannot be utilized in the
    county workhouse or county farm.
       “6 . They shall be required to labor not less
   than eight nor more than ten hours each day, Sun-
   days excepted. No person shall ever be required
   to work for more than one year.
       “7. One who refuses to labor or is otherwise
   refractory or Insubordinate may be punished by
   solitary confinement on bread and water or in such
   other manner as the commissioners court may direct.
       “8. When not at labor they may be confined
   in jail or the workhouse, as may be most conven-
   ient, or as the regulations of the commissioners
   court may prescribe.
       "9. A female shall in no case be required to
   do manual labor except In the workhouse.
       "10. One who from age, disease, or other phy-
   sical or mental disability is unable to do manual
   labor shall not be required to work, but shell re-
   main in jail until his term of Imprisonment is
   ended, or until the fine and costs adjudged against
   him are discharged according to law. His inabil-
   ity to do manual labor may be determined by a phy-
   sician appointed for that purpose by the county
   judge or the commissioners court, who shall be
   paid for such service such compensation as said
   court may allow.
       "11. One convicted of a misdemeanor whose
   punishment either In whole or in part is imprlson-
   ment in jail may avoid manual labor by payment
   Into the county treasury of one dollar for each
   day of the term of his imprisonment, and the re-
   ceipt of the county treasurer to that effect shall
   be sufficient authority for the sheriff to detain
   him in jail without labor."
        "Art. 795.   (879)   (857) Authority for imorisonment
        "When, by the judgmentof the court, a defendant
Honorable E. L. Hlnson, Jr,, page 7           O-4924


    is to be imprisoned ln jail,Ta certFfied copy
    of such judgment shall be sufficient authority for
    the sheriff to place such defendant In jail."

        "Art. 797.   (881)    (859) Discharge of defendant
        "A defendant who has remained in jail the
    length of time required by the judgment shsll be
    discharged. The sheriff shall return the copy of
    the judgment, or the capias under which the de-
    fendant was imprisoned, to the proper court, stat-
    lng how it was executed."
        "Art. 920.   (1015)   (980) -Discharged from jail
        "A defendant placed in jail on account of
    failure to pay the fine and costs can be dis-
    charged on habeas corpus by showing:
        "1Q That he is too poor to pay the fine and
    costs, and
        "2. That he has remained in jail a suffi-
    cient length of time to satisfy the fine and
    costs, at the rate of three dollars for each day.
        "But the defendant shall, in no ease under
    this article, be discharged until he has been im-
    prisoned et least ten days; and a justice of the
    peace may discharge the defendant upon his showing
    the same cause, by application to such justice;
    end when such application is granted, the justice
    shall note the same on his docket."
        The court of Crl.mLnalAppeals of Texas has defini?ely
recognized that prisoners should be given credit on their fines
and costs for service in jail or in the workhouse or other pub-
lic works. The court also definitely recognized the right of
a convict to serve part of his tfme in jail and pay the balance
in cash. See the case of Ex parte Hill,15 S.W. (2d) 14 (Texas
Court of Criminal Appeals) o
        The Court of Criminal Appeals of Texas has recognized
a distinction between the credit to be allowed for service ih
jail under Article 793 and Article 920 of the Code oftCriminal
Procedure a Article 793, supra, applies to the satisfaction of
judgments in misdemeanor cases In courts other than justice
courts. Article 920, supra, applies alone to convictions be-
fore justices of the peace. See Ex parte Fernandez (Texas
Court of Criminal Appeals), 57 S.W. (2d) 78 and Ex parte MC
Laughlin (Texas Court of Criminal Appeals5 . 60 S.W. (2d) 786.
Honorable E. L. Hinson, Jr., page 8        O-4924


        We quote from opinion No. O-441 of this department as
follows:
        "It is the opinion of this department that
    $3.00 per day la the proper rate for allowance or
    credit to be given prisoners who have been convlct-
    ea of misdemeanors for serving time In jail, or
    for working out their fines as provided by law.....
    It is the further opinion of this department that
    Article 920 of the Code of Criminal Procedure of
    Texas applies only to convictions obtained In jus-
    tice courts but the same Is mandatory as applied
    to justice courts. For example, A, B end C are
    all convicted in justice courts for misdemeanor.
    A's fine and costs amount to $15.00; B's fine end
    costs amount to $30.00 and C's fine and costs
    amount to $45.00. Under Article 920 of the Code
    of Criminal Procedure of Texas although said ert-
    icle allows $3.00 per day for $ail service, said
    article further provides e minimum of ten dagsslm-
    prisonment. A must serve the minimum of ten days.
    B's fine and costs amount to $30.00 which divided
    by $3.00 would make ten days. C's fine and costs
    amount to 845.00: he is allowed $1.00
                                    ,-    aer
                                          _   day; he
    must serve‘15 days."
        We quote from opinion No. O-1015 of this department,
rendered September 8, 1939, as follows:
        "It is therefore our opinion that a prlson-
    er convicted in the justlce court, when his total
    fine and costs is a sun!under $30.00 should re-
    ceive credit for only one-tenth of the total amount
    for each day he serves. To illustrate, end carry
    Mr.            Is example further, A, whose fine-and
    costs amount to $15.00 should receive credit for
    $1.50 for each day-served in custody; should he
    elect to pay the balance of his obligation in cash
    after five days in jail, he should be required to
    pay $7.50 in cash."
        Opinion No. o-1578 of this Department holds that~a
constable Is entItled under Article 1055, Code of Criminal
Procedure of Texas, to half costs on that part of the time
a defendant remains in jail or works for the county when he
so discharges pert of the fine end costs and pays off a part,
and that the same shall be properly prorated.
        Opinions Nos. 0-469 end O-755 of this department hold
that where only a part of the fine end costs are collected,
.




    Honorable E. L. Hinson, Jr., page 9         O-4924


    that the money collected should go first to the payment of
    the costs and the balance, if any, to the amount of the fine
    and that where there Is not enough collected to pay all of the
    costs, the money should be prorated and that In such a case one
    officer had no priority over another. We quote from opinion
    No. O-755 as follows:
            "In view of the trial fee above provided, be-
        ing a part of the costs, and by reason that the
        justice of the peace is paid by the county, it is
        our opinion that the $8.50 ln question should be
        prorated on the basis of $5.00 to the county attor-
        ney; $5-50 to the constable and $4.00 to the coun-
        ty, which figures approximately sixty-four and a
        fraction cents on the dollar. The county would get
        its prorata part of the payment.
            Opinions Nos. O-469 and 755, supra, cite Article 949
    of the Code of Criminal Procedure of Texas, which reads as
    follows:
           "Money collected by an officer upon recogni-
       zance, ball bonds and other obligations recovered
       under any provisions of this code, and all fines,
       forfeitures, judgments and jury fees, collected
       under any provisions of this code, shall forthwith
       be paid over by the officers collecting the same
       to the county treasurer of the proper county after
       first deducting therefrom the legal fees and com-
       missions for collecting same." (Underscoring ours)
            We quote from opinion No. O-1792 of this department as
    follows:
           "5. In answer to your fifth question, it Is
       the opinion of this department that where only a
       part of the fine and costs are collected, that the
       money collected should go first tothe payment of
       the costs and the balance, if any, to the amount
       of the fine, and that where there is not enough
       collected to pay all the costs, the money collected
       should be prorated between the arresting officer,
       the county attorney and the county. That no offl-
       cer has priority over another in such matter. For
       example, if the fine and costs amount to $23.00,
       as In your case, the fee of the county attorney
       amounts to $5.00; the fee of the constable amounts
       to $13.00 and the trial fee amounts to $4.00; if
       the defendant paid $6.00 in cash and the balance
       is worked out on the county farm the arresting of-
                                                                   .




Honorable E. L. Rinson, Jr., page 10        0 -4924


    ficer would be entitled to $3*55 of the cash pay-
    ment? the county attorney would he entitled to
    $1.36 of the cash payment and the county (as its
    portion of the trial fee) would be entitled to re-
    ceive $1.09 of the cash payment. The arresting
    officer and the county attorney would also be en-
    titled to receive payment from the county under
    Article 1055, Code of Criminal Procedure of Texas,
    one-half of the balance of their fees for the tLme
    the defendant worked out the balance of his fine
    and costs. Under the example quoted above the ar-
    resting officer would be entitled to receive from
    the county t'*esum of $4.72; the county attorney
    would be entitled to receive from the county the
    SUJUof $1.82.  The total sum received by the ar-
    resting officer from both sources would be $8.27;
    the total sum received by the county attorney from
    both sources would be $3.18.”
       We answer your first question as follows:
        It is our opinion that Article 1055, V.A.C.C.P., has
no application to the fees due the Justices of the Peace and
County Judges for their services in trying and finally dlspos-
ing of criminal cases inasmuch as they are entitled to full
fees from the county under ArtLcle 1052, V.A.C.C.P. for each
criminal action tried and finally disposed of, irrespective of
the collection or satisfaction of the judgments they render.
        It Is our oplnion that county attorneys, constables,
sheriffs and clerks having costs in a misdemeanor case are not
entitled to one-half fees under Article 1055, V.A.C.C.P., prior
to satisfaction of the judgment by jail service, county farm
service, road work service OP other legal service on other
county projects as contemplated by Article 1055, V.A.C.C.P.
However, Lf the judgment is satisfied in part only by such
jail or other service under said Article 1055 saLd officers
would be entItled to half-costs on the portion of the judg-
ment which is satisfied. See Limited Conference Opinion No.
O-1578 of this department, a copy of which is enclosed herewith.
       We answer your second question as follows:
        It is our opinion under the facts stated in your
second question that the money collected should go first to
the payment of the costs and the balance, If any, to the pay-
ment of the fine, and that where there Is not enough collect-
ed to pay all the costs, the money collected should be pro-
rated among the officers having costs in the case and the
county (for its trial fee). That no officer has priority over
Honorable E. L. Hinson, Jr., page 11         O-4924


another officer or over the county in such proration. The
officers having costs in such case would also be entitled to
half-costs from the county under said Article 1055, for the
portions of time served in jail or other authorized service.
In this connection see our quotation above In this opinion
quoting from opinion No. O-1792 of this department which
thoroughly explains this matter ln detail.
        Article 1055, supra, provides that such half-costs
shall be paid "out of the Road and Bridge Fund or other funds
not otherwise appropriated".
         We answer your third question as follows:
        This department has repeatedly held that the Justice
of the Peace has absolutely no authority to release a defend-
ant who is finally convicted and a fine assessed against him
on the defendant's promFse to pay later or on any other pro-
mise. We have likewise held repeatedly that if a Justice
were to attempt to make such order the Sheriff or Constable
should ignore the order and place the defendant In jail or
on the county farm or other authorized county project for the
satisfaction of the fine ana costs, unless the defendant paid
the fine and costs. We have likewise repeatedly held that the
Sheriff or Constable or other arresting officer would be in
the position of unlawfully permitting a prisoner to escape if
they falled to do their duty by not collecting the fine and
costs or by not taking the convicted defendant in custody.
        It is our further opinion that the judgment of convic-
tion in a misdemeanor case will authorize the Sheriff to pro-
ceed in the statutory methods of collection of the fine and
costs and that no further orders from the JustIce of the Peace
are necessary. In other words if the defendant does not pay
the fine and costs adjudged against him the Sheriff should then
place him in jail, or on the county farm or other authorized
county pro,iTcCto work out his fine and costs. It should be
borne In mind,however, that the county farm is under the super-
vision of the Commissioners' Court and that such court has the
power to enact rules and regulations concerning the operation
of such farm and the Sheriff must, of course, be gulded by the
wishes and desires of the Commissfoners' Court as to the number
of and necessity for prisoners to be placed upon said county
farm. It is likewise true that it would be for the Commlssion-
ers' Court to determine the necessity or advisability of work-
ing county prisoners on the county roads or other authorized
county projects.
         Trusting that this satLsfactorily answers your FnqUiry,
we are
                                                         .   .




Honorable E. L. Rinson, Jr., page 12           0 -4924


                               Very truly yours
                            ATTORNEY GENERAL OF TEXAS

                               By s/wm. J. Fanning
                                    Wm. J:'Fanning
                                    Assistant

WJF:mp:wc
Encl.

APPROVED OCT 24, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
