E’WICE   BbANIEL                      AUSTIN.   TEXAS


                                      May   15, 1947

             Honorable M. E. Gates,             Opinion No. V-201
             County Attorney,
             Walker County,                     Re: Authority  of a sheriff
             Huntsville,Texas                        to release a prisoner    .. ,
                                                    .when pecuniary judg-
                                                   "ment is rendered a-
                                                  .' gainst him and the au-
                                                     thority of a County.
                                                     Judge or a Count,yAt-
                                                     to'rneyto require re-
                                                     arrest under capias
                                 z,
                                                 ,. #pro fine.
             Dear Sir:
                       We refer to your letter of April.24, 1947,
             which reada:
                        "I am asking the opinion of your De-
                   partment, with reference to Article 787,
                   of The Code of.CriminalProcedure, and
                   would appreciate an answsr to thsfollow-
                   ing .questions:
                                     ~r*::     .“

                         aen   the Judgment,againstthe De-
         *          fendant in a,Pecuniary'Fine,,.;and~
                                                     he .is'
                   nresent; does the Sheriff have the author-
                   'ityto release him before the fine is
                   'paid, or is served out as provided in
                   Article f93, in other words is it'manda-
                    tory that the sheriff confine him, until
                   the Judgment is satisfied; either by pay-
                   ment of the Judgment in money, or by pay-
                   ment at labor as provided by Article 793,
                   .CodoCriminal Procedure?
                                        II..
                        wShould the sheriff release a pris-
                   oner,.where a Judgment for a Pecuniary
             I..   Fini~:?rad
                            not been satisfied,has the
                              '.,_
Hon.   16. E.   Gates,   Page 2, V-201


       County Judge or the County Attoraey authority,
       to apply to the County Clerk ror a Writ of
       Capias Pro Fine?
                                III.
            “Has the County Judge or County Attor-
       ney.authority to obtain a Caplas Pro,Fine,
       and is it the mandatory or the Sheriff to
       ersoute the atie?”
          The remedies for the enforoementot peoaniary
jud@ente  in misdemeanor cases are presoribed in Artioles
787 to 793 or Vernon*8 Code or Crimiaal Prooedure.
          Suoh judgments may be disoharged in the manner
presoribed in Artiole  705 of Vernon’s Criminal Prooedare,
rhioh IS as roli0w8;
            nArtiole 78!j5.When the judgment a-
       gainst a derendant is for a fine and coats
       he shall be discharged from the same:
                1, When the amount thereor haa
                   been full7 paid.
                2. When remitted by the proper
                   authority-.
                3. When he has zemained im oue-
                   tody ror the time required by
                   law to satisfy the uount
                   thereorD
         We quote the following from Opinions!! Noa.O-1048
and’04924 rendered by a rormer Attorney  General in whioh
the pertinent statutory proiisions are reviewed:
                ~OpiiiionWOJO.
                             o-1043:
            ‘In view or the provisions of the above
       set out and designated statutes, it is the
       opinion or this Department, and you my be
       80 advised, that after the plea of guilty
       or the derindant has been convicted by trial
       in a misdemeanor ease the arrpsting offioer
       doer not have authority to give speoial priv-
       ileges’in the payment of the finestassessed
       by the ooart in its judgrent.”
Hon.   M.   E. Gates, Page 3, v-201


              "Opinion No. o-4924:
          *This department has repeatedlyheld
     that the Justice of the Peace has absolutely
     no authority to release a defendflnt who is
     finally convicted and a rine assessed against
     him on the def;ndant'spromise to pay later
     or on any other promise. We have likewise
     held repeatedlythat if a Justice were to
     attempt to make such order the Sheriff or
     Constable should ignore the order and piece
     the defendant in jail or on the county i'aRri
     or other authorized county project for the
     satisfactionof the fine and costs, unless
     the defendant.paid the fine and costs. We
     have likewise repeatedly held that the Eer-
     lff or Con;;tsbleor other arresting officer.
     would be :n the position of unlawfully oer-
     mittina prisoner to esoaoe if they railer.
     to do t&r   duty by not collectingthe fine ~
     and costs or by not taking the convicted  de-’
     fendant in custody."t(Xm
                           '~ phasis added)
          We are enclosing copies of OpinlibnsWos,.~O-6684
and O-3530 ror your inronnation.
           In the Opinion No. O-6684 it was held that a
peace officer has the duty to see to it.that the judgment
is satisfied according to law; and that the sheriff has
no authority to.defer a judgment or arrange for its pay-
ment in installments. We call attention to the case of
Spradley vs. State (error refused) 56 5.X.114, cited in
that opinion in which it is held that the sheriff and
his bondsmen are responsiblefor the fine and costs, for
wilrully refusing to enforce collection.
          Opinion No. O-3538 also held that arresting
officers are not authori?.edto extend credit to defend-
ants in order to permit payment of the fine on an in-
stallment plan. That opinion further holds-thatif
peace officers "turn a defendant loose" after judeplent
is rendere,dagainst him, such defendant occunies the
status of sn escaped prisoner. !-is.      amw
              We adhere to said opinions on the points in-
volved.
              Answering your questions,we are of the opinion:
               (a) That the sheriff is not authorized
HOB. M. E. Gates, Page 4, TV-201


    to release a defendant against whom a pecun-
    iary judgment has been rendered, when he is
    present in Court, until suoh judgment is sat-
    isfied in'one or the methods provided by law;
         (b) Thst the County Attorney is author-
    ized to obtain the issuance 01 a capias pro
    rine ror the capture or a defendantwho has
    been released by a sheriff without collecting
    the fine,and costs acCOrdin to the judgment;
    and,
          (c) It is mandatory that the sheriff ex-
     eoute suoh capias pro fine and make return
     showing how he executed the same.


         when a peouuiam 'judgmentin a crimlnel
    case has been rendered'againste defendant who
    is present in co@, the sheriff    is not euthor-
    ized to release ths defendant until such judg-
    ment is satiefied by payment of it in money, or
    by confinementor labor as provfaed in Articles
    785 and 793, V.C.C.P., as amended by Acts 1943,
    48th Leg., p. 351, oh. 229, sect. 1; ir BOt so
    satisfied, capias pro tine may issue and the
    sheriff has the mandatory duty to exeoute the
    seme. V. C. C. I'.Arts.  705, 787, 788, 789,
    790, 792, 793; Spradley vs. State, (errcir re-
    fuagi3)50 s. w. 114. Terry vs. State, 17 S. W.
        .
                                   Yours very truly,
                             ATTO~GBNBBAL      OF TEXAS




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