                                  The Attorney                 General           of Texas
                                                     July   19, 1982
MARK WHITE
Attorney General

                                Mr. Robert 0. Vitcrna                               opinion   no.   PllJ-497
SupfmacuunBUilOlW               Executive   Director
P. 0. Box us45
                                Texas Comieaiou      on Jail    Standards           Be:    Accrual      of  good    time
Atmhl. lx. 7S711. 2545
5W475-2591                      P. 0. Box 12985                                     credit by jail     inmates
Tdex QlwS74-1357                Austin.   Texas     78711
Tdsopia 5121475mS5
                                Dear Mr. Viterna:
IS907 Main St.. Suite 1499
Dallas. TX. 752914709
                                     You have requested  en opinion    from this office    concerning   House
2141742.5944                    Bill No. 647 passed by the Sixty-seventh    Legislature   which pertains     to
                                the manual labor of county jail   prisoners   and the commutation of time
                                for good conduct and for the perforuence     of manual labor.     Acts 1981.
,B24 Alberta Ave.. Sulle lo[)
                                67th Leg., ch. 708, at 2647.    Rouse Bill No. 647 amends articles       43.10
El Paso, TX. 789052792
OlY532.34S4                     and 45.53 of the Code of Criminal         Procedure,    and article    5118a.
                                V.T.C.S.
1220 Dallas Ave.. Suite 292           You first     ask the following       question:
Houston. TX. 770026986
71318500566
                                               Do the provisions      of section  1 of House Bill
                                            No. 647 apply to work performed in the county jail
1106Broadway. Suite 312                     and/or the rehabilitation     center?
LUobock. TX. 79401-347s
Bw747-5235
                                      Section 1 of House Bill No. 647 amends article     43.10 of the Code
                                of Criuinal   Procedure.     The provision   of the auended statute   would
 43W N. Tenth. Suite B          spply    to work perforned       by a uisdeueanor     convict  during   his
 WAllan, TX. 755Ol.lSB5         incarceration  in the county jail,     but only if such labor is used upon
 312m82-b547                    public improvements.     Sec. 4.

 209 Main Plaza. Suite 400             This office      reached the same conclusion        in opinions     on a similar
 San Antonlo. TX. 782052797     question     concerning    the use of misdemeanor convict laborers.             Attorney
 51212254191                    General Opinions         E-1101 (1977);        O-3260 (1941).      Itach of those      two
                                opiniona      considered     vhether     it would be necessary         to establish      a
 An Equal Oppwlunityl           county workhouse or a county farm in order for a commissioner’s                     court
 Aflirmativa Acllon Employer    to utilize       the labor of persons convicted         of misdemeanors.       on public
                                roads,     bridges     or other       projects    of the county.         Both opinions
                                construed      the applicable      language of articles      43.09 and 43.10 of the
                                Code’ of Criminal           Procedure      and concluded     that    the   labor    of a
                                misdemeanor convict         could only be used upon public improvement.             These
                                provisions        remain   identical       in pertinent    respect     to the earlier
                                versions       following      the    recent     amendments    by the      Sixty-seventh
                                Legislature.




                                                                 p. 1777
Mr.   Robert     0.   Pitema      - Page 2     mu-497)




       Article        43.09   provides    in relevant     psrt:

                   When    a    def eudaut    is  convicted of    a
               misdemeanor...    he may...   be put to vork in the
               workhouse. or on the county farm, or on the public
               improveuents   of the county....

       Article        43.10    provides   in relevant     part:

                     1. Each comiasioners     court x      provide  for
                 the erection  of a workhouse and the establiehuent
                 of a county farm in connection     therewith   for the
                 purpose of utilisiug   the labor of said parties     so
                 convicted;

                      ....

                    4. They shall   be put to                 labor   upon   public
                 works.... (Emphasis added).

        It becomes clear when these two articles          are read together       that
the provisions       of article   43.10 refer to three types of labor as set
forth     in article    43.09.   You express   coucero ia your request         letter
that a particular         county has neither   a workhouse nor a county farm.
The comissioners         court has authority  to establish    these facilities        to
utilize     convict   labor, but it is not required     to do so.

       You next        ask:

                    Do the provisions  of           section      1 of Eouse Bill
                 No. 647 apply to innate6            going     to be transferred
                 to TDC?

        As already noted, section            1 of Eouse Bill go. 647 smende article
 43.10 of the Code of Criuiual            Procedure.        Article    43.10 does not apply
 to felouo      who are in county jail              merely awaiting         transfer     .to the
 Department      of Corrections.           Article      43.10.     by its      express     term.
 applies   “vhere the punishment assessed               in a conviction       for misdemeanor
 is coufinement       in jail      for uore than one day, or...            the puniehuent        is
 assessed     only at a pecuniary fine and the party so convicted                      is unable
 to pay the fine.”            Where a person is convicted             of a felony,       and the
 punishuent      assessed      is only a fine or term of jail,                   or both,’ the
 judgment      may be satisfied           in the       same manner as a misdemeanor
 c9nviction.        Code Criu.        Proc. art.       42.10.       Thus, where a person
 convicted      of a felony         is punished      by jail      time, a fine,         or both,
 article     43..10 spplies       to him.     ‘fhe punishment        of confinement        in the
  county jail     is to be distinguished            from iuprisonuent         in a Department
 of Corrections         institution.        See Code Grim. Proc. art.               42.09.     il.
  Since   an inmate who is to x                   transferred       to the Department            of




                                              p.   1778
.   .


        Mr. Robert 0. Viterna          - Page 3         W-h97)




        Corrections       has not       been     convicted   of an offense      punishable      by
        confinement      in jail,      he is     not subject   to the provisions     of article
        43.10.

             You next      ask the folloving           question:

                      Under section   2 of Eouse Bill No. 647, hov uuch
                      credit    can be given aa inuate with a one-year
                      sentence?

        Section  2 of Eouae          Bill    No. 647 amends           article     5118a.     V.T.C.S.,   to
        read as follows:

                           in order to mcourage             county jail discipline,             a
                      distinction        uay be made in the term of prisoners
                      so as to extend              to all       such as are orderly,
                      industrious        and obedient,        comforts and privileges
                      according       to their        deserts;....           &mutation         of
                      time for good conduct,              industry       and obedience may
                      be wanted        the inmates of each countv la11 bv the
                      sheriff      in charge.          A deduction          in. t&ae not to
                      exceed one (1) day for each day of the original
                      sentence actually          served may be made from the term
                      or terms of sentences            when no charge of misconduct
                      has been sustained          against      the prisoner.           This Act
                      shall     be applicable            regardless         of whether        the
                      judgment of~fouviction              18 s fine or jail            sentence
                      or a combination              of jail          sentence       and fine;
                      provided,       hovever,       that such deduction               in time
                      shall    not exceed one-third               (l/3)     of the original
                      sentence as to fines              and court costs assessed               in
                      the judpent          of conviction.           A prieoaer under two
                      (2) or uore cumulative              sentences        shall be alloued
                      c-ration           as If they vere all one sentence.                   For
                      such sustained          charge of uiaconduct               in violation
                      of any rule            known to the prisoner                  (including
                      escape or attempt            to escape) any part or all of
                      the coamutatlon           which shall           have sccrued under
                      this Act in favor of the prisoner                       to the daa
                      said misconduct         may be forfeited            and taken away by
                      the     sheriff....           No other          time      allowance      or
                      credits     in addition        to the commutation of time for
                      good conduct herein             provided       for may be deducted
                      frou the tens or terms of sentences.                         The sheriff
                       shall keep or cause to be kept a conduct record in
                      card or ledger form and a calendar card on each
                       inmate shoving all forfeitures                  of coseNtatlon       time
                      and the reasons therefor.                 (Emphasis added).




                                                 p. 1779
l4r. Robert 0. Viteraa     - Page 4     m-497)




The underlined    portions    indicate     the changes msde by House Bill No.
647 in this     article    which otherwise       is virtually   unchanged     since
adopted by the Fifty-fourth         Legislature    in 1955.   The major changes
increase  the time lllowabls       for good conduct and llmlt      forfeiture     of
cmtation      to that   accrued under thlr act.

       The legislature    also carried   over  the provision  originally
enacted in 1955 which states:     “No other time allowance or credits    in
addition   to the commutation  of time for good conduct herein provided
for may be deducted    from the term or terms of sentences.”    -See Acts
1955. 54th Leg., ch. 461. at 1182.

      At first,   article     5118a, V.T.C.S.,   would seem to limit     the total
credit which could be deducted from a one-year sentence             to six months
(or one (1) day for each day of the original                  sentence     actually
served).      Flowever,     this    was  clearly    not   the   intent      of    the
Sixty-seventh    Legislature.

     Eouse Bill No. 647 added a totally new provision  to article                43.10
of the Code of Criminal Procedure which provides 8s follows:

                For each day of manual labor,        in addition     to
            any other credits     allowed by law, a prisoner         is
            entitled    to have    one day deducted       from each
            sentence   he is serving.     The deduction  authorized
            by this    Act, when combined with the deduction
            reauired    bv Article      42.10,  Code of      Criminal
            Procedure,    -1965, may not exceed two-thirds       (2/3)
            of the sentence.     (Emphasis added).

Sec.   1, subsec.   6.

       The first     sentence     of this     section   shows the     legislsture’s
intention    to provide     for cmtatlon        at the rate of one dsy for each
day of manual labor In addition          to other credits   allowed by law, k.
those allowed by article          5118a.    The courts will,     If possible,       give
effect    to all sections     of a single statute.      Threshing Machine Company
v. Eowth. 293 S.W. 800 (Tex. 1927).              We should attempt     to harmonize
and alve effect       to the addition        to article    43.10 as well as the
amen&ent to article        5118a.

       When the limitation        set forth in article        5118a is read in the
context of both acts,         it becomes clear that this was intended to be a
limitation     on the authority       of the sheriff     to reward an Inmate for
“good conduct,     industry     and obedience” by commuting up to “one (1) day
for each day of the original              sentence   actually     served...    when no
charge of misconduct         has been sustained      against    the prisoner.”     The
deductions     provided     for in article      43.10 have nothing          to do with
either     the “good conduct” of the inmate or the authority                    of the




                                   p.   1780
Hr. Robert    0. Vlterna    -‘Page     5    (MU-497)




sheriff.     A prisoner  becomes automatically “entitled” to these                credits
as a sort    of compensation for “each day of manual lebor.”

      The Sixty-seventh   Legislature  specifically   llmlted    the sheriff’s
authority   to forfeit  c-ration      time to “any part or all          of the
cmtation      which shall    have accrued     under this    Act."    @mphasls
added).

      If an Inmate received       the maximum mount of good time credit
allowable      under   article    5118a    and    worked   each  day   of    his
incarceration,     he would discharge    three dsyr of his sentence   for each
day served.      Thus. on a one-year    sentence,    an inmate could receive     a
maximum of eight months credit.

       Article   43.10 provides       that “[tlhe      deduction    authorized     by this
Act, when combined with the deductions                required by article        42.10 of
the Code of Criminal Procedure.            1965, may not exceed two-thirds            (2/3)
of the sentence.”          Article     42.10    does not seem to “require”              any
deductions.      Eowever, it would not appear to be necessary                  to analyze
the legirlatlve       intent   behind this       particular      sentence    in order to
answer your specific         queetion.      Clearly     the deduction      authorized     by
article     43.10 when combined with the deductions                  authorized     by any
other existing      statutes    would not exceed eight months on a one-year
sentence     (or two-thirds    of the sentence).

      Your fourth     question    is    as follows:

                Do the provisions   of section   2 of House Bill
             No. 647 [amending article    5118a. V.T.C.S.] apply
             to inmates going to be transferred   to TDC?

       Such an iomete Is technically       confined by order of the court In
the Texas Department of Corrections          and is therefore         subject    to the
provisions    of article  6181-l.    V.T.C.S.,    regardlng     good time.       See Ex
                                                                                --
paa:’ ;311$, 548 S.W.Zd 905 (1977).         In addition,      article     5118a states
         [t his Act shall      be applicable        regardless      of whether      the
judgment of conviction     is a fine or jail       sentence or a combination          of
jail   sentence,  and fine.”      (Emphasis added).       It   clearly,     by its own
 terme, is not applicable     to sentences     for Incarceration         in the Texas
Department of Corrections.

       Your fifth    question    is    as follows:

                 Under section     3 [of Eouse Bill No. 647 which
             amends article       45.53. of   the Code of Criminal
             Procedure]     since   the act states      that fines   are
             satisfied    ‘at the rate of not less than $15.00 for
             each day, ’ can the sheriff     or justice     of the peace
             increase   the credit    given aga1na.t fines?




                                            p.   1781
Mr.   Robert     0. Vlterna    - Page 6          (W-497)




       Article      45.53 of the     Code of Crlmioal       Procedure    provides      in part:

                    A  defendant    placed    in jail  on account               of
               failure     to   pay    the  fine   and coets  can               be
               discharged     on habeas corpus by showing:

                    ....

                     2.  That he has remained   In jail a rufflclent
                 length of time to satisfy    the fine and costs,    at
                 the rate of not less than $15 for each day.

      The sheriff    has authority    under article     5118a. V.T.C.S..     to
commute up to one-third    of the total   fine assessed   against a defendant
who is serving    out a fine In the county jail.       Rx parte Mlnjareo,  582
S.W.2d 105 (Tex. Grim. App. 1978).       The court relied on the following
language of the current version    of article   5118a:

                 A deduction   in time not to exceed one third (l/3)
                 of the original    sentence may be made from the term
                 or term     of sentences..     ..  This Act shall    be
                 applicable   regardless    of whether the judgment of
                 conviction    is   a fine     or jail    sentence or a
                 combination   of jail   sentence  and fine....

Acts 1963, 58th Leg.,       ch. 371, at 943.    The only change in this
language relates     to the amount of the deduction  in time.   Under this
provision,    the sheriff’s   action would in effect  increase  the credit
given against    such a fine above the $15 allowed by article  43.09.

                                          SUMMARY

                     The provisions      of article     43.10,    V.T.C.S..     of
                 the Code of Criminal           Procedure      apply     to work
                 performed     by a misdemeanor         convict     during     his
                 incarceration     in the county jail,       but only if such
                 labor is used upon public             improvements.        These
                 provisions     do not apply to convicted            felons    who
                 are merely in county jail        awaiting transfer        to the
                 Texas Department         of Corrections.          The maximum
                 amount of credit which could be given to an inmate
                 with a one-year       sentence    would be two-thirds           of
                 his sentence      or eight months.        The provisions        of
                 article    5118s. V.T.C.S.,      do not apply to inmates
                 who are merely        awaiting     transfer     to the Texas
                 Department      of Corrections.         The sheriff         could
                 increase    the credit     given against       a fine beyond
                  the rate of $15.00        per day by commuting up to
                 one-third     of the total      fine assessed         sgainst     a




                                            p.    1782
*.   .

         Hr. Robert 0. Viterna    - Page 7     (Ml-497)




                   defendant     in addition to the credit allowedunder
                   article43.09.     V.T.C.S.

                                                  v-.-&g

                                                       Attorney   Generalof Texas

         JORN W. FAINTER,JR.
         First AssistantAttorneyGeneral

         RICRARDE. GRAY III
         ExecutiveAssistantAttorney General

         Preparedby Maury Rexamer
         AssistantAttorneyGeneral

         APPROVED:
         OPINION COMMITTEE

         Susan L. Garrison, Chairman
         Jon Bible
         Rick Gilpin
         Maury Hexamer
         PatriciaRinojosa
         Jim Hoellinger




                                             p. 1783
