                      THEATTORNEY                     GENERAL
                                    OF TEXAS
                                   AUSTIN   ~.TEXAS

   WVIIA.    WlLSON                    September 14, 1960
AlT0RNE-r       GJSNERAI.




     Honorable George E. Gilkerson               Opinion No. W-933
     District Attorney
     Lubbock, Texas                             Re:    Whether prosecution will lie
                                                       under Article 95 of the Penal
                                                       Code based on failure of a
                                                       sheriff to turn in funds collected
     Dear Mr. Gilkerson:                               as a result of a capias pro fine?

            You have asked the question of whether prosecution will lie under Article
     95, Penal Code of Texas, based on the failure of a sheriff to turn in funds
     collected as a result of a capias pro fine, under the following fact situation:

                "On or about December 6, 1957, Gonzalo Rojas was arrested by
             J. T. Herrington, Sheriff of Crosby County, for violation of the
             liquor laws. Rojas pleaded guilty on December 7, 1957, and was
             fined $400 and costs and was sentenced to 30 days in jail. Rojas
             was freed when his attorney made Motion for New Trial.

                 "On or about December 8, 1957, the Sheriff, ignoring, the Motion
             for New Trial, went out to Rojas ' house and arrested him and placed
             him in jail. Rojas stayed in jail until the 20th day of December.
             At that time, the Sheriff told Rojas that he would let him go if he
             would pay one-half of the fine. A friend of Rojas, Bernard.0Gonzales,
             Came  Ln on the 20th day of December and gave the Sheriff a check for
             $200 and the Sheriff released Rojas.

                "On January 27, 1958, the Clerk of the County Court of Crosby County
             issued a capias pro fine commanding the Sheriff to take the body of
             Gonzalo Rojas and place him in the County Jail of Crosby County until
             the fine and costs were paid. The Sheriff actually gave the capias
             pro fine to the Defendant Rojas as a receipt with the remarks thereon
             as follows: 'Came to hand the 27th day of January, 1958, and Executed
             the 3rd day of February, 1958, by collecting an additional $160 from
             Gonzalo Rojas plus $200 paid on December 23, 1957, leaving a balance
             of $84.05 still due.' The capias pro fine was signed by J. T. Herring-
             ton, Sheriff of Crosby County, Texas.

                "About a week later, Rojas paid $84.05 to Deputy Sheriff Alvie Ratheal
             which was the balance of his fine and costs.

                "The only money reported to the Commissioners Court or turned over to
             the County Treasurer was the $84.05 collected on or about the 10th of
             February, 1958, by Alvie Ratheal.
Honorable George E. Gilkerson, Page 2   (w-933)

        "Sheriff J. T. Herrington co-mingled both the $200 payment
    and the $160 payment with his own money and spent it."

    Article 95 of the Texas Penal Code reads as follows:

        "If any officer of sny county, city or town, or any
    person employed by such officer, shall fradulently take,
    misapply, or convert to his own use any money, property
    or other thing of value belonging to such county, city or
    town, that may have come into his custody or possession by
    virtue of his office or employment, or shall secret the
    same with intent to take, misapply or convert it to his
    own use> or shall pay or deliver the same to any person
    knowing that he is not entitled to receive it, he shall be
    confined in the penitentiary not less than two nor more
    than ten years." (mpbasis added)

    Article 787, Code of Criminal Procedure reads as follows:

        "When a judgment has been rendered against a defendant
    for a pecuniary fine, if he is present, he shall be impri-
    soned in jail until discharged as provided by law. A certi-
    fied copy of such judgment shall be sufficient to authorize
    imprisonment."

    Article 788, Code of Criminal Procedure reads as follows:

        "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."

     Article 789, Code of Criminal Procedure reads as fdL~ows:

         "Where such capias issues, it shall state the rendition
     and amo?untof 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 further costs
     of collecting the same are paid, or until the defendant is other-
     wise legally discharged."

     Article 1616, Revised Civil Statutes of Texas, states:

         "An account shall be kept with the sheriff charging him
     with all judgments, fines, forfeitures and penalties, payable
     to and rendered in any court of the county, the ccllection of
     which he is by law made chargeable, the sheriff may free him-
     self from liability from such charge by:
Honorable George E. Gilkerson, Page 3   W-933)
         (1) Producing the receipt of the County Treasurer showing
    the payment of such judgment, fine, forfeiture or penalty.

         (2) Showing to the satisfaction of the Commissioners' Court
    that the same cannot be collected, or that the same has been dis-
    charged by imprisonment or labor, or by escape, without his fault
    or neglect, and obtaining an order from said court allowing the
    same."

   To convict under Article 95 the State must show:

         1. The Defendant is an "officer" and held office.
         Germany v. State, 109 Cr.R. 180, 3 S.W.2d 798.

         2. The funds were converted to his own use. (only
         slight evidence of f?au&lent intent required) Busby
         V. State, 51 Cr.R. 289, 103 S.W. 638.

         3. That the funds came into his custody by virtue of
         his office or employment. Hanna v. State, 138 Cr.R.
         183, 135 S.W.2d 105 followed in 138 C R 186, 135
         s.w.2d 106 and 138 Cr.R. 186, 187, 18;; i35 S.W.2d 107.

    In the case of Reed v. State 141 Cr.R. 503, 149 S.W.2d 119, a deputy
sheriff was charged with violation of Article 95. The money was a fee earned
by the sheriff for levy of execution upon certain properties. Accused bad
received this money and not reported it and had spent it himself. This case
clearly holds that a sheriff is an "officer" as contemplated by Article 95.

    The evidence of conversion in the present case is apparently the same as
in the Reed case and is sufficient to support a conviction.

    The court held in the Reed case the funds came into Reed's custody by
virtue of his office. In the present case the sheriff had a duty to collect
and account for all fines. Article 1616, R.C.S. of Texas.

    In the case of Moore v. State, 53 Neb. 831, 75 N.W. 319, quoted with
approval in Hartnett v. State, 56 Cr.Rp. 281, 119 S.W. 855 (1909), the court
said:
        rr. . a where an officer receives money which he is not
   by law authorized to receive, such money is not received by
   him in his official capacity, . . -"

    The question here is whether the sheriff was authorized by law by virtue
of a capias pro fine to receive the payment of the $160 in question when the
payments were not made in strict compliance with the law. The point has been
Honorable George E. Gilkerson, Page 4   NW-933)
raised that the sheriff has no authority to make illegal collections. The
Moore case goes on to say:

         "Where a criminal statute applies only t,o persons of a certain
    class, the doing of the acts which the statute forbids does not estop
    the defendant from denying that he belongs to the class which he is
    alone subjected to the penalties."

    The Moore case further states:

         "The cases cited as applying estoppels are for the most part
    cases where an officer charged by law with the duty of collecting
    taxes ?-asactually collected them and then refused to turn them
    over because illegally levied. There the general duty of collecting
    the money was imposed by law on the officer. The money was paid.
    The legality of the tax was a question solely between the public and
    the taxpayer, and the latter having voluntarily paid the tax, it was
    no affair of the collector whether he might have resisted the payment
    or not. The matter was not one of an estoppel. The issue was merely
    immaterial."

    In the present case the sheriff has a duty to collect fines and cannot raise
the issue that the fines were improperly collected to defeat prosecution. This
being true, prosecution will lie.



         Under the fact situation given prosecution will lie
         under Article 95 of the Penal Code based on failure
         of a sheriff to turn in funds collected as a result
         of a capias pro fine.

                                            Yours very truly,

                                            WILL WILSON
                                            Attorney General of Texas



                                            By:     ,-:v  ,,,~
                                                  Cecil Cam&k.   Jr.
                                                  Assistant Attorney General
APPROVED:
OPINION COMMITlEE
W. V. Geppert, Chairman                           REVIENED FOR THE ATTORNEY
Bob Shannon     B, H. Timmins                     GENERAL BY:
Tom Burr-us     Riley Eugene Fletcher             Leonard Passmore
