                                                                     R-146




             Hon. George T. Thomas               Opinion No. v-109
             County Attorney
             Howard County                       Re:   Whether or not a Coun-
             Big Spring, Texas                         ty Attorney may dls-
                                                       miss certain cases
                                                       pending before his
                                                       court, and the lla-
                                                       blllty   of the county
                                                       for fines tina costa
                                                       collected.
             Dear Sir:
                         Your request     for an opinion   from this      Depart-
             ment is as follows:
                            "During 1945 and I946 certain cases
                   were filet3 on the criminal docket of the
                   County Court of Howard Count$'whlch have
                   not been disposed of, but a check of the
                   monthly reports~of       the County Clerk shows
                   that in some of these cases the fine and
                   costs were paid, and in some of them the
                   Defendant has laid out his fine ana costs
                   in jail.     There are no docket entries     and
                   no judgments In these cases.        The person
                   who was Gounty hag8 during such period la
*

.   I




                   now deceased.                                    :..
                            "The present county judge has stated
                   that he.does not want to enter judgments
                   ~.~&pro'tunc      because inquiry among the of:,
                   ficers'hanallng     the cases has shown that
                   in most of them the Defendant maae no ap-
                   pearanoe before the court, but merely paid
                   to the arresting      officer  a minimum fine and
        ;,
                   costs.     (Such being accepted by such Offl-
                   oera with the agreement of, and under ln-
                   atructlone     of the County Judge.1
                          We have been unable to arrest the De-
                   fendants again In these cases.  If we were
                   able to do so, we could solve the matter by
                   bringing them before the court and entering
Hon. George T. Thomas - Page 2          (V-109)


      a judgment.
              “Under such facts, will you please
      give   your opinion on the following:
             n1. Can I, as County Attorney,    leg-
      ally dismiss such cases, and If so, what
      effect  does that have toward making the
      County liable    for return of the fines and
      costs collected?
             “2.  Should the present County Juilge,
      under proper motion thereyor,   er,ter judg-
      ment nunc pro tune In spite of the method
      on-which the fine and costs were paid, that
      ~18, without appearance be’fore the oourt and
      without aotual sentencing by the court?
            “3.   If such cases capnot be ai8p0.90a
      of in either of the above mMhods -- how
      0an they be aisp0f38a of?”
             Artlole   577, V.C.C.P.,      is as follows:
             9?he Qistr.lat or county attorney-may,
      by permission of the court, dismiss a orlm-
      inal action at any time upon filing    a wrlt-
      ten statement with the papers in the case
      setting out his reasons for such di&ulssel,
      which shall be incorporated    in the judgment
      91 diSdpiS8&1. No case shall be ait3mif383ea
      without the consent of the presiding     judge.”
              In State va. Anderson, reported in 26 S.W.
(2ai 174, Judge Leaay, speaking for the Supreme .,Court ,
had this to say in regara to a dlsml8sal of a orlmlnal
case :
             *A number of state8 have enaoted sim-
       ilar statutes to prevent the very abuse
       that actuated the passage of ,the above ar-
       ticle  of the Code of Criminal Procedure.
       The purpose of such statutes Is indicated
       in various deolslons,   among other@, the
       ease of People v. MoLeoa, 25 Wend. (N.Y.)
       483, 37 Am. Dec. 328, wherein it is said:
             rrtIt Is said In New York that be-
      causa at common law the power of the at-
      torney general had been delegated to dls-
Hon. George T. Thomas - Page 3      (V-109)


      trlct   attorneys    in nearly everything
      pertaining    to inaiotments and other
      orimlnal.proceedlngs        local to their
      respective    counties,     the Legislature,
      finding the power In so many hands,
      and fearing its abuse, provided that
      it shod      not'thereafter      be lawful for
      any district     attorney to enter a no110
      prosequl upon any indictment or In any
      other way discontinue        or abandbn Sam
      without the leave of the court having
      jurisdiction     to try the offense charged.*"
            In view of the foregoing  authorities and the
facts aet out in your request,  It Is the opinion of thie
Department that the County Attorney may, with the permls-
slon of the Ctiurt, legally dismiss such cages.
              If such oases are dismissed,  you ask further
what effect   does that have toward making the county lia-
ble for return of the fines ana costs colleoted.      The, an-
swer to this question depends on whether the fines.were
paid voluntarily   or involuntarily.   In 40,&n. Jur., B157,
pp. 020-821, we find the following:
             It Is a universally  r,ecognized
      rule that money voluntarily    paid under
      a claim of right to the payment and
      with knowledge of the facts by the per-
      son making the payment cannot be re-
      covered back on the ground that the
      olalm was lllegal.W
              We quote from 40 Am. Jur.,      I] 220, pp. 864-
865 as follows:
             "The rule that illegal   payment8
      coerced under duress or compulsion may
      be reooverea,   provided the compulsion
      furnishes  the motive for the payment
      sought to be recovered,    and prooeeds
      from the person against whom the action
      Is brought, Is supported by a number of
      cases In which fines have been Illegal-
      ly or Improperly Imposed and paid by the
      accused under circumstances    constituting
      duress, especially    where the payment Is
      to avoid or secure. release from lmpris-
      onment for nonpayment of the fine,      It
.   .




        Hon. George T. Thomas - Page 4        (V-109)


               being held that a payment-made un-
               der these circumstances     Is an lnvol-
               untdry ,one, and that the fine may be
               recovered.    TJut, In accordance with
               the established   rule already dls-
               cussed, It appears to be well settled
               that money voluntarily    paid as a fine,
               with knowledge of the facts,     cannot
               be recovered,   and the rule that money
               paid unfler 3 mistake of law, with full
               knowledge of the facts,     1s not recov-
               erablp unless the payment was lnducd
               by the fraud or Imposition or the un-
               due adva'ntage of the one receiving      It,
               or was made under duress, has been ap-
               plied."
                      Vie quote from 26 A.L.R.,    1124 as follows:
                       nOrdinarily,' the question. of
               whether one who has paid a fine illeg-
               ally or lmproperiy imposed upon him
               can recover back the amount so paid
               may be said to depend upon certain fac-
               tors,   chief of which 1s that of volun-
               tary or involuntary    payment.   If the
               payment is made under clrctistances
               which amount to coeroion or duress so
               that it must be 'regarded as an Involun-
               tary one, the fine may'generally     be re-
               oovered; otherwise not.     The oases in
               which It has been held that the payment
               was under duress are usually those in
               which the aocused was imprisoned or was
               threatened with imprisonment and pay-           :.:
               ment of the fine wasinecessary     to avoid
               or secure release from such lmprison-
               merit."
                        In' Cornstook v. Tupper, 50 Vermont, p* 596,
        money was pala to an attorney employed to prosecute the
        ,one paying the money for unlawfully        selling   liquor and
        was afterward paid to the county clerk.            No warrant had
        been served and of course, there was no record of a fine
        having been imposed.        A complaint, however, had been
        drawn and a warrant Issued.         The trial court found in a
        suit brought to recover the money that           it was paid to
         save plaintiff     from prosecution;   that the proceeding8 in
        the settlement were Illegal,        but that, the money having
Bon. George T. Thomas - Page 5          (V-109)


been paid to purchase the peace of the plaintiff', he was
not entitled to recover It.  The Supreme Court said:

                 "This must be regarded either as
       a voluntary payment In satisfaction        and
       discharge of a claim made upon the plain-
       tiff    or to buy off from and quiet a crlm-
       inal prosecution      to which he was exposed.
       Nothing in the character of extortion        or
       duress Is shown that relieves       the trans-
       action from the character,       or the plaln-
       tiff    from the position,   which we.asslgn
       to them as'above.       This being so, plaln-
       tiff    cannot have the money back by ac-
       tion.".     (See also Houlehan vs. Kennebec
       County, 108 k??lne 397.):
            In Uale, et al, vs. Simon, et al, reported
In 267 S.W. 467, which was a sult for recovery of mOney
alleged to have been paid under duress, Judge Bishop of
the Commission of Appeals had this to say:
             "There can be no duress unless
       there Is a threat to do some act which
       the party threatening has no le&    right
        0 0. I
              Certainly  here we do not have such fads    ex-
lstlng.    We must assume that the officer   had a right tb
make the arrests and also place the defendants In jail.
Just beoause they paid the fine rather than make bond
and wait for trial    Is not sufficient  grounds alone to
oonstltute  involuntary   payments.
              In view of the,foregolng    facts and a~uthori-
ties,  you are respectfully'advlsed     that it is the opln-
ion of this Department that the county Is nat liable       for
the return of the fines and oosts paid by the defenaents
under the circumstances      set out In your letter.
             Article   580, V.C.C.P.,     provides   as follows:
             "In all prosecutions  for felonies,
      the defendant must be persdnaily    present
      at the trial,  and he must likewise be
      present in all cases of misdemeanor when
      the punishment of any part thereof is lmi
      prlsonment in jail.    When the record in
      the appellate  court shows that the defend-
Hon. George T, Thomas - Page 6          (V-109)


      ant was present at the commenoement,
      Or~anY portion of the trial, it shall
      be presumed in the absence of all ev-
      idence in the record to the contrary
      that he was present during the whole
      trial."
             Article   518, V.C.C.P.,      Is as follows:
              "A plea of guilty in a misde-
      meanor case may be made either by the
      .defendant or his counsel In open court.
      In such case, the defendant or his
      counsel may v?aive a jury, and the pun-
      ishment may be assessed by the court,
      either upon or without evidence,   at the
      discretion    of the court.*'
             In your request you do not state whether or
not the offense with which each defendant was charged
was one In which the punishment may be by confinement in
jail..
             The Court of Crlmlnal Appeals has recently
held that where the judgment in a misdemeanor case as-
sessed a jail penalty,  It idas error for the Court to tiry
the oasa in the absence of the aooused.     (See Henderson
vs. State, 127 5.17. (2) 902; Stew&    ~8~ State, 127 S.W.
(2) 903.)
            It appears that'the law clearly z%qulres the
presenae of the aocused at his trial for a miSd0meanOr,
the punlshment of which may be confinement in jail.
               Therefore,  it is the opinion of this depart-
ment that the present County Judge cannot now sentonoe
the defendant in his absence in any guch case where the
pdnishment may be oonflnement In jail even If there is .
now suffiolent    evidence before the Court for 3 osnvictiolu
              Ifi answer to C;uestion No: 2 ce quote from 12
Tex. Jur.,   p. 713-4-5-6 as follows:
              "Ei 352--Nunc pro tune Entry --       In General
            ("If there is a failure   from any
      cause vrhqtever to ,enter judgment and pro-
      nounce sentence during the term, the judg-
      ment may be entered and sentence pronounced
Hon. George T. Thomas - Page 7       (V-109)


      at any succeeding term of the court,
      unless a new trial has been granted,
      or the judgment arrested,    or an ap-
      peal has been taken.'     (Art. 772,
      V.C.C.P.)   (Brackets ours)
             "The court also has power inde-
      pendent of the statute to enter juag-
      ment nunc pro tune.
             ”
                     .The act applies and per-
      mits thi &try of a nunc pro tune
      judgment In cases where the judgment
       as orlgl    lly entered does not In
       fact exp:ss     th judgment rendered.
       . . . (UndersooLg      ours)
             "% 353--Prooedure--Effect
             "To warrant the entry of a judg-
      ment or sentence nunc ~pro tuno there
      must be proof that the ProDosed jUaR-
      ment or sentenoe was theretofore  ac-
      tually rendered or pronounoed;   b t
      this proof may be made as well by"pa-
      rol as by reoord evidence.   (Emphasis
      ours)
            *Notice of the proposed      entry
      must be given to the acoused;      . 4 ."
             .We assume from your letter    that the provis-
fon in Article   518, supra, was not complied with.      That
is, the defendants did not plead guilty in o en court
either in person or by counsel qd,      therefore,
                                                %GiG-has
never been a legal plea of guilty made by the defendants
in such cases.
              The~re was never any kind of judgment or een-
tence entered.    It Ia true that the' Sheriff  acaepted the
fine and oosts'from    each defendant; but this will not suf-
fice.   To permit a Sheriff to accept a plea of guilty la
contrary to the statute as well as public polfoy.       The
Judge Is the only person before whom one may enter such
a plea.   This is a power or duty Imposed upon the Judge
and la one which cannot be delegated to another.
            Therefore,    since there has never been a juag-
ment or sentenoe.rendered     and In view o,f the foregoing
Hon. George T. 'l'homas - Page 8    (V-109)


facts,   as well as the above quoted authorities,  you are
respectfully    advised that it is the opinion of this De-
partment that the present County Judge may not legally
enter 3 nunc pro tune judgment In any of such cases.
            In answer to Question Ns. 3, it is the opin-
ion of this Department that the only legal way in which
disposition may be made In such cases Is by complying
with answer ??o. 1 oC thin opinion.


             1. The County Attorney may dlsmigs
    criminal oases with the consent of the pre-
    siding Judge where the defendants cannot be
    arrested and where there has been no legal
    plea of.gullty  entered.   'ATEj ~~;lr .".,";c~~c~
    State v. .%aderson, 26 S.%'.
    oases are dismissed :vhc-rc the deferidnnt has
    paid 3 fin1 and costs to the sheriff      without
    judgment of the Court, such payment is volun-
    tary and m3y not be recovered by the defend-
    ant from the county.
              2. Where there was no judgment or
    sentence actually    rendered, the County Judge
    cannot legally   enter a nunc pro tune judgment.
    (12 Tex. Jux-.~ pages 713-4-5-6;   Art. 772,
    V.C.C.P.)
                                       Yours very truly,
                                   ATTORNEY
                                          GENERAL
                                                OF TEXAS




,BA:djm:wb


                                   APPROVXD
                                          MARCH28, 1947

                                    zb     c2cii!d
                                   ATTORNEYGENERAL OFTEXAS
