Hon. H. A. Hodges                   Opinion NO. O-4482
County $uditor                      Re:     Construction        of Article793,
Williamson  County                  v. ,1.S,C.P.,     (as amended by S.S.
Georgetown,   Texas                 222, ~,48th Legislature)           and con-
                                    strucflon’of        Article     4
                                                                   gLO,   V. ci.
Dear Sir:                           C.C.P.
              Your re~:~xs’c fror o::inion       has been received    and care-
fully    considered   b;; this department.          We q~lc,.te from your re-
quest    as follows:
              kindly  give me an opinion   relative    to the pro-
        cedure in time in jail  ,nd allowance      per day on fine
        and costs in a misdemeanor   case in the Justice     Court.
                “tit.    9iO C.C.P.(2)   recites      a ten day imprison-
        ment while the above article,             (referring      to Article
        793, V.;i.C.C.P.~,      as amended by-S.B.         222, 48th Legis-
        lature)       in my opinion,   conflict%        therefore    I desire
        to be informed which article            pre&ils?
                Yf d person is in j::lil with a tot:+.1 amount of
        $14.00 for fine and costs and serves             four days and
        pays $2.00 I consider        his fine and costs paid in fall
        and he is to be discharged,         but if he is in jail        to
        serve a total      of $14.00 for fine and costs         :,nd after
        being in jail      5 days requests     a release,     as he has
        really    paid $15.00 for the $3.00 per day allowed un-
        der S.B. 222,, I do not know, just how to inform the
        Justice    of the Peace on account       of the conflict      with
         Art. No. 920 C.C.i?.      It appears    to me he h,as forfeited
        his right     to release   by not having tendered         some pay-
        ment before     the 5 days ;l+>sed.
               ‘1, . . .I1    (Ijracket   insertion     ours)
           &ticle  793; Vernon’s            Annotated     Texas Code of Criminal
Procedure,  as amended by Senate            Bill  222,    48th Legislature  of
Texas, 1943, reads as follows:
                When a defendant   is convicted   of a mis.demeanor
        and his punishment     is assessed   at a pecuniary     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 in the workhouse,         or on the
        county farm, or public     improvements   of the county,        as
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Hon. H. A. Hodges,             page     2    (O-4482)
                    .,
                                                                                 ..-
      provided’in~the        succeeding       article;      or if there be.
      no such workhouse          farm or itiprovements,            he shall be
      imprisoned      in jai!    fdr ~a sufficient          length   of time
      to discharge      the full      amount of fine and costs             ad-
      judged against       him; rating        such labor or imprisonment
      at Three ($3.00) ~Dollars for each day thereof;                      pro-
      vided,    however,.-that      the defendant         may pay the pecu-
      niary   fine assessed        against     him at any time while he
      is serving      at work in the workhouse,               or on the county
      farm, or on the public, improvements                  of the county,       OP
      while he is serving         his jail        sentence,     and in such in-
      stances    he shall      be entitled       to a credit       of Three
      ($3.00)    Dollars     for each day or fraction              of a day that
      he has-served       and he shall        only be required          to pay the
      balance    of the pecuniary          fine assessed        against    him.”
              Article   793 of the Code of Criminal            Procedure     in 1925
provided    that when a defendant        is convicted       of a misdemeanor
and his punishment        is assessed    at a pecuniary        fine and that if
he is unable to pay the fine and costs he should be Imprisoned
in jail    or put to work in the workhouse             or on the county farm
or public     improvements     of the county,       rating    such Iabor or im-
prisonment     at $3.00 for each day thereof.              This article      w’as
amended by the. Acts of 1927, 40th Legislature,                 ~First Called Ses-
sion    page 194 chapter         68, Section     1, by reducing       the rate from
$3.06 per day {o $1.00 per day,             This article       was againamended
by the Acts of 1934, 43rd Legislature,                Second Called Session,
page 85# chapter       33, Section     1; by ‘changing the rate from $1.00
per day to $3.00 per day.           This Article       was again amended by the
Acts of 1937, 45th Legislature,            First    CaIled Session,       House Bill
45 Section      1.    The.1937 amendment to Article            793 provided      cer-
taln exceptions       applying    to counties      of certain      o ulation     brack-
ets.    The case of Ex parte Ferguson,            132 S*W. (2dP k8,        Texas
Court of Criminal        kppeals    held the bracket        exceptions     contained
in the 1937 amendment to Article            793, unconstitutional          and void.
              4rticle      920, Vernon’s            Annotated   Texas    Code of Criminal
Procedure,.reads          as follows: -             _
             ItA defendant  pIaced  in jail on account                       of failure
       to pay-the    fine and costs can be discharged                        on habeas
       corpus by showing:
              “1.       That    he’is       too   poor   to pay the   fine     and costs,
       and
              42.  That he has remained       In jail  a sufficient
       lengtta of time to satisfy       the fine and costs,      at. the
       rate of $3.00 for eaah day.
              “But the defendant      shall,  in no case under this                       ar-
       ticle,   be discharged    until    he has been imprisoned       at
-   .




        Hon. H. .‘i. Hodges,       page   3    (O-4482)


              least  ten days; and a Justice              of the Peace may dis-
              charge the defendant     .upon his          showing.,the  same cause,
              by application     to such~ justice;          and when such appli-
              cation   is granted,   the justice           shall   note the same on
              his docket .I’
                    The Court of Criminal        !ippeals has recognized     a distinc-
        tion between the credit      to be allowed for service        in jail   under
        the two statutes.     WC direct     your attention     to the fact that      9r-
        title  793, supra,   applies     to the satisfaction     of judgments     in
        misdemeanor   cases in courts      oth,*r than Justice    Courts.     ~See Ex
        parte Fernandez,    57 S.N.(l:d)    j78; Ex parte McLaughlin,        60 S.W.
         (2d) 756.
                      In the McLaughlin  case, the conviction       WL;S in the Cor-
        poration     Court of El Paso.’ &cti.cle 793’was held applicable,        and
        the court, makes the unequivocai       statement   that   “Article  920 ap-
        plies    alone to ccnvictions   before    Justices   of the Peace.”
                       ?residing    Judge     Morrow in the     Fernandez      case,   wrote    the
        following:
                     “The chapter       inwhich       Article      920,~ supra      appears
               is one having reference           to a judgment of conv 1 ction in
               a criminal     action    before     a Justice       of the Peace.       From
              what h<,s been said ,it is apparent                that the statutorv
              iiuakyp~x~~*&~~Wect                                                 in lmd
                          c ‘en     110 ,h    convicti.Qn       of a -nor               ba-
              fore the Justice         of the Peace and the conviction                of a
              &&&$&y:oy.        in co~&ts of h&her            jurisdiction          The rea-
               son for the distinction          ‘?lay be only a matter’of            conjec-
              ture;     ,Since the statutory          direction       was definite      in
               its terms,     the duty of the court to apply it as written
               is mandatory.        However, it may 1:ae said that the Justice
              Courts are limited         by the Constitution             (Article    5 Sec-
              tion 19) in criminal          matters      to a fine not exceed&g
              $200.00.while        under titicl’e       5, Section 16, other courts
              are given jurisdiction           in misdemeanors           of much higher
               grade and with penalties            far more severe.”
                       Article     920 of the Code of Criminal       Procedure,    there-
        fore relates       particularly     and applies particularly       to Justice
        Courts.
                     A study of the opinion    in Ex parte     Fernandez     case,             su-
        pra, will    show th::t the court clearly    recognized     ,the principle
        that a person who has been convicted        of a misdemeanor       in the              Jus-
        tice  Court,    and  who was serving his  time   in  jail    must  remain              In
        jail  at least    ten days and for a time sufficient         to discharge               his
        fine.
Bon. H. A. Hodges,         page   4    (O-4482)


              We quote     from Opinion       No. O-441 of this         department         as
follows:
               “It is the opinion       of this   department      that $3.00
      per day is the proper rate for allowance                 or credit       to
      be given prisoners         who have been convicted          of misde-
      meanors for serving          time in jail,     or for working out
      their     fines was provided      by law in Collingsworth           County,
      Texas.       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 Justice
      Courts but the same is mandatory             as applied       to.Justice
      Courts.        For example,     A, B, and C are all convicted              in
      Justice      Courts for misdemeanor.          At s fine and costs
      amount to $15.00;        B’s fine and costs amount to $30.00
      and C’s fine and costs amount to $45.00.                   Under Article
      920 of the Code of Criminal            Procedure,     although      said
      ilrticle     allows $3.00 per day for jail           service,      said ar-
      ticle     further   provides     a minimum of ten days imnrison-
      ment . A must serve the minimum of ten days; B must
      serve ten days.         B’s fine and costs amount to $30.00
      which divided       by $3.00 would make ten days.               Cl s fine
      and costs amount to $45.00;            he is allowed $3.00 per day;
      he must serve 15 daysen
              We quote     from Opinion      No. O-1015       of this    department         as
follows:
               ‘1, . . we respectfully            call your attention          to the
       last    gentence     of the opinion         of Ex parte Hill,        15 S.W.
        (26) 14, in which the court recognizes                   that prisoners
       should be given credit             on their     fines    and costs for serv-
       ice in jail       or in the workhouse           or other public works.
       In that     case the court states            that where a defendant           has
       been Indicted        for a felony       and convicted        for a misdemean-
       or the defendant          shall   be discharged        upon serving       of the
         all sentence,        or fine and costs,          at the credit      rate of
       4 3.00 per day, or after            serving     the fine and jail         sen-
       tence upon the payment ‘of whatever                   balance     is due there-
       on’.     We know of no reason for a different                   rule where the
       original      prosecution       was for a misdemeanor           in any court
       having jurisdiction           thereof.       In the Hill case the Court
       of Criminal       Appeals definitely.recognizes               the right     of a
       convict     to serve part of his,time              in jail    and pay the
       balance     in cash.
              “In     arriving    at the proper    credit     to be allowed for
      service       in jail    under a conviction       in ,,he Justice   Court,
      we must       observe    the provisions     of Article    920 Code of
      Criminal       Procedure,      supra,  that   ‘the defsndan 4 shall,     in
      no case       under this      Article,   be discharged    until   he has
Hon. H. ,i* Hodges,       page   5     (O-4482)


      been   imprisoned     at least      ten     days;‘.
                                                     r
              “It is, therefore,         our opinion   that a prisoner
      convicted      in the Justice       Court, when his to,tal fine
      and costs is a sum under ii30.00 should receive               cr?Jit
      for only one-tenth          of the. total    amount for each day ha
      serves.     .To illustrate,        and carry Mr.             *S exam-
      Tie further,      :i, whose fine and costs amount to..$lT.OO
      should receive       credit    for $1.50 for each day served in
      custody;     should he elect        to pay the balance   of his ob-
      ligation     in cash after       five days in jail,    he should be
      required     to pay $7.50 in cash.
            “In a letter   opinion written       August 20, 1935, by
     Honorable    Leon Moses, Assistant       Attorney   General,   to
     Honorable    D. E. Wood, County Attorney         of Williamson
     County (Vol. 366, Letter       Opinions,     page 6561, it was
     held in-any    case in Justice     Court where the ,fine and
     costs are less than $30*00, the proper            and reasonable
     way to allow credit     .for time spent in jail       would be to
     divide    the amount of the fine and costs by ten, which
     is the minimum number of days that the defendant              must
     serve before    being released.
              “In your letter      you used an illustration          of a per-
     son who was convicted          of a misdemeanor        and his penalty
      :iffixed   at a fine of $1.00 and costs of $13.00,                making
     a total     of $14.00,     and stated     the convict      had served
     four days In jail,        wished to pay the balance           of his
     fine and costs in cash, and thereby                obtain   immediate
     relief.      In this    specific    instance     we are of opinion
     the defendant       should be allowed        credit    of $1.40 per day,
     which at, four days would amount to $5.60.                  Subtracting
     the 45.60 as jail        credit,    from the total        amount of
     $14.00 would leave a balance             of $8.40 which should be
     paid in order to obtain          the release       of the defendant
     from custody.”
             It is our opinion    that the amendment to Article    793,
quoted above, applies      to misdemeanor   convictions  in courts  other
than Justice    Courts,   and does not affect    Article 920 which ap-
plies .to Justice    Courts alone.
           ‘Under the facts     stated   by you the defendant’s    fine and
costs in Justice     Court amounted to $14.00 and the defendant          paid
$2.00 on such fine and costs and served four days in jail.             Since
his fine .and costs     are under $30.00,    the amount ($14.00)     should
be divided   by ten to arrive      at the proper   credit-to   be allowed
him for jail   service,    which amount is $1.40 per day.        He served
Hon.   H. A. Hodges,   page   6      (O-4482)


four days and he should be credited        therefor with the sum of
$5.60, which when added to the $2.00 paid, makes the sun~of
$7.60.     Subtracting    the $7.60 from the total   fine and costs
leaves  a..balance     of $6.40 owing by the defendant    on said fine
and costs.
            Trusting   that   this     satisfactorily          answers   your   inquiry,
we are
                                            Very truly      yours
                                            UTORNEY GENWAL OF TEXAS
                                            @y /s/      Wm. J. k&u&g
                                            Wm. J.      Fanning, Assistant

APPROVEDJUL 3 1.943
[s/ Grover Sellers
First  Assistant   Attorney       General
APPROVED: omuoi  comr Tm
BY:      BWf3, CHAIRMAN
WJF:mprwb
