Honorable   K. H. Dally         ,Opinion No., O-1655
County Attorney
Hutchinson County                Re:       (a) Would a sheriff. imprisoning      a man
Borger,   Texas                          ..convicted of a misdemeanor       and not pay-
                                           ing his fine, be, guilty of false imprison-
                                           ment under Article. 1169, Penal Code of
                                           Texas, if he allowed the convict credit
                                          ‘only at the rate of one dollar ($1.00) per
                                         .da,y during the period of his imprison-
                                           ment?    (b). Under Article    793, C.C~.P.,
                                           must ,the convict, ,if required by the sheriff,
                                       , make some kind of showing that he is un-
                                       ‘, able to pay the fine and costs adjudged
                                           again~st him, ,or is the sheriff required to
                                        .allow. the conv:ict Three Dollars ($3.00)
                                         for each day of his imprisonment    without
                                         any showing that he is unable to pay his
                                         fine costs ?

             We are in receipt of your letter dated November     3, 1939, where-
in you request the opinion ;of this Department  upon the above-stated   ques-
tions.

              Article  793, Code.of Criminal     Procedure   of Texas. as amended
by the Acts   of 1937, ,Forty-fifth Legislature,    First Called Session, reads as
follows :

             “When a ~defendant,is convicted of a misdemeanor           and
      his punishment is assessed      at a ‘pecunia~ry fine, if he is un-
      able 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 provided in the succeeding        Artic’le, or if
      there be no such.workhouse,      f,arm ,or improvements,      he shall
      be imprisoned    in jail for a sufficient length of time to dis-
      charge the full amount of ~fine ,and costs adjudged against him;
      rating such labor or imprisonment        at Three Dollars     ($3) for
      each day thereof; provided,     however,    that in all counties in
      this State containing a population of not less than twenty-four
Honorable   K. H. Dally,   Page   2




       thousand one hundred eighty (24,180) no,r more than twenty-
       four thousand two hundred (24,200); or in any counties con-
       taining a population of not less than forty-one       thousand
       (41,000) and not more than forty-two         thousand (42,000); and
       in all counties having a population of not less than forty-three
       thousand and thirty (43,030) and not more than forty-three
       thousand and fifty (43,050); and all counties having a popu-
       lation of not les,s than thirty-seven      thousand two hundred
       eighty-six  (37,286) and not ‘more than thirty-seven       thousand
      two hundred ninety (37,290); and all counties having a popu-
      lation of not less than seven thousand one hundred (7,100)
      nor more than seven thousand one hundred fifty (7,150); and
      in counties containing a population of not less than thirty
      thousand seven hundred and seven (30,707) nor more than
      thirty thousand seven hundred and nine (30,709); and in coun-
      ties containing a population of not less than twenty-seven
      thousand five hundred forty-nine        (27,549) nor more than
      twenty-seven    thousand five hundred fifty-one       (27,551);and in
      counties containing a population of not less than nineteen
      thousand one hundred twenty-eight          (19,128) nor more than
      nineteen thousand one hundred thirty (19,130); and in counties
      containing a population of not less than eighteen thousand eight
      hundred fifty-nine    (18,859) nor more than eighteen thousand
      six hundred sixty-one      (18,661); and in counties containing a
      population of not less than ten thousand and thirteen (10,013)
      nor more than tan thousand and fifteen (10,015). according to
      the last preceding Federal       Census, when a defendant is con-
      victed of a misdemeanor        and his punishment is assessed      at
      a pecuniary fine, if he is unable to pay the 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 provided in the succeeding Article,         or if there
      be no such workhouse,       farm ‘or improvements,      he shall be im-
      prisoned in jail for a sufficient length of time to discharge         the
      full amount of fine and costs adjudged against him, rating such
      labor and ,imprisonment       at not less than Ona Dollar ($1) per
      day nor more than Three Dollars          ($3) per d,ay.

             ‘The Commissioners       Court of each such county as de-
      fined by population brackets     above in this State, at any regular
      or special term, shall, by order made and enter~ed in the min-
      utes of said Court, determine the rate of wages to be paid con-
      victs in their respective    counties for labor or imprisonment
      per day in accordance     herewith.”
Honorable     K. H. Dally,   Page   ,j




              The Court oft GrSm~:A~~~n.has’h~ld,~in             an opinion de-
livered October 25, 1939, b~~gud@$K~u@;a*         inthecase      of Ex Part-e Gussie
Ferguson,    132 S.W. (2d) 4d8t’Urat~the~:imcadrne~~    to Article 793, Code of
Criminal   Procedure,   passed’:by th6Forty+f#th      Legislature,    supra, and
Articles  794a, 794b, 794~ and ,794& Q#&? Of. CLriminal Procedure,          which
prescribe   different credits fbr jMl,idrtice.   in counties of different popula-
tions, are in contravention   ofthe S&e and Fedderal’Constitutions          and void.

             Judge Kreugnr,   in’htlr ~&rtii@nire&gnized       the right of the relator
to be given credit under fhe gekeral, &w ,in affect,at the time of the pass.age
of the present Article  793, ,wbfeh’ill+nved    T,hrire Dollars per day on fine and
costs, thereby eliminating   the p@$&t~n       brackets.

            H&.chtn&m f@nnty. b#:.a,p@~tioa           of fifteen thousand eight
hundred and forty-eight,  accbrding’t;o~a     Jast preceding Federal        Census, and
does not come within any of the p&it&Map brackets            set out in Article 793, or
any of the other abo.verment’ioned arficles.    .therefiqr;    the general rate of
Three Dollars per day has alw~ays:.bt~n~:applica~~       to Hutchinson County as
prescribed  by ArticJe 793,. Hutctl$~~@t OeUaty is, therefore.         not affected by
the opinion of Judge K,reuger~ ,drDo?r&:ln.,the     Ex,Paite     Fe.rguson case.

               Article   920 dihe’Cd&Bf         Crua&xal   Racedtire      of Texas   reads
as follows:

              “A defendant placed~ia~~,~~~ On :acco&of          fatlure    to pay
       the fine and cpsts can be d~k&s&ted     @n h&&as          forpus    by showing:

              -‘*l.   That he is f.~),,p@b;ti   Pay the tiyidnd   costs,    and

              “2. That .lushaa remsiiUk& in jUi ~a:suffietent length of
       time to satiafy~the fine ,and.:cobta..at~,the~~rata of three dollars
       for each day.

             ‘But the defendaRt &a$l;‘tn ,no,~car(*z,udei this, article,
      be discharged   ~unttl,he’haa,.~bb,$n~&pris~oned-at least ten days;
      and the justice of the peace, may~d$a&arge:~the          defendant.upon
      his showiqthe     same cau86, by app&ation           ta such justice; and
      when such~ application    is gti~atittid;‘the justice &hall note the same
      on his d~ocket,’

              The Caurt ofCiimtasl~~lls         h&s recognized    a distinction
between the credit k, beaDowed     #far ~serv#e -tnjaid;eer      the two preceding
statutes:. Article 793. supra. appltea’ti    the~,satisfacflon of judgment in mis-
demeanar    cases in ceurts Q&e@ tbknrttstic~     c-t%       f%& Ex Parte Fernandes,
57 S.W..(2d) 578; Ex Parte McLaugl&in,      6Q &W..@d)     78b.
                                                                                   . .-
Honorable    K. H. Dally,   Page   4




              In themFernandez    case, the relator, Fernandez,  was convicted
in the District Court,of Nueces County, Texas, of a’misdemeanor        and his
punishment assessed      at a fine of $50.00 and costs~, amounting to $16.00.
Presiding   Judge Morrow     in this case wrote thenfollowing:      i

                “The chapter in which Article     920. supra, appears,    is
        one having reference     to a judgment of conviction in a c:rimi-
        nal action before a justice of the peace.      From what has been
        said it is apparent that the statutory enactments make a dis-
        tinction on the subject. at hand with reference     to ,the conviction
        of a misdemeanor     before the justice of the peace and the con-
        viction of a misdemeanor      in courts of higher jurisdiction.      The
        reason for the distinction may be only a matter of conjecture.
        Since the statutory direction was definite in its terms, the duty
        of the court to apply it as wr.itten is,mandatory.       However,    it
        may be said that the justice courts are limited by the Constitu-
        tion (Art. 5, Sec. 19) in criminal    matters to a finenot,.exceeding
        $200.00. whiles under Article     5, Section 16, other courts are
        given jurisdiction  in misdemeanors       of much higher grade and
        with penalties far Morse severe.”

               In opinion No. 0- 1015 by Assistant Attorney General Benjamin
Woodall,    directed to Honorable  Tom Seay, County Attorney,   Potter County,
Amarillo,    Texas, appears the following language:

                 “In arriving   at the proper credit to be allowed for
         service   in jail under a conviction in the justice court, we
        must observe the.provisions         of Article  920, Code of Crimi-
        nal Procedure,       supra, that ‘the def~endant shall, in no case,
        under this article, be discharged        until he has been imprisoned
        ,at least ten days;’

               Yt is, therefore,   our opinion that a prisoner convicted
        in the justice court, when his total fine and costs is a, sum
        under Thirty Dollars     ($30.00) should receive credit for only
        one-tenth of the total amount for each day he served ‘. . . ?

             In the McLaughlin     case, 60 S.W.(2d) 786, the relator was con-
victed in the corporation    court of El Paso, Texas, and, hi,s fine assessed
at Thirty Dollars   ($30.00).   In that case, it was held that Article 793 was
applicable,  and that Article   920, alone was applicable  to convictions before
the justice of the peace.

              From the holdings in the Fe,rnandez case and~the McLaughlin
case,   and the recent opinion delivered by Judge Kreuger in the Ex Parte
Honorable     K. H. Dally,   Page    5




Ferguson   case, it is apparent that a prisoner     is entitled to Three Dollars
($3.00) per day for service    in jail under a conviction of a misdemeanor
in any court.   The only difference    in the applications   of Articles 793 and 920
between the justice court and other court convictions is that when a prisoner
is convicted-in a justice court, and serves his time in jail, “he shall; in no
case, be discharged    until he has been imprisoned      at least ten days.”

                In light of the for,egoing    discussion,    we now come to consider
your first    question.

                The Constitution     of Texas,    Article   I, Section   19, reads   as fol-
lows :

                “No citizen of this state shall be deprived of life, liberty
         and property,   privileges or immunities,   or in any manner dis-
         franchised,   except by the~due course of the laws of the land.”

               Article   1169 of the Penal       Code   of Texas,   reads   as follows:

                “False imprisonment    is the wilful detention of another
         against his consent and where it is not expressly     authorized
         by law, whether such detention be effected by an assault, by
         actual violence to the person, by threats or by any other means
         which restrains  the party so detained from removing from one
         place to another as he may see proper.”

                We quote from       19 Tex.   Juris   560, as follows:

                 “The commonest      suit for false imprisonment       is one brought
         against the sheriff or other officer of the law, and the most fre-
         quent justification   raised is that the defendant acted in obedience
         to legal process which he was bound to obey.            Imprisonment    by an
         officer under a warrant,      fair and regular    on its face, issued by legal
         authority, is not a false imprisonment,         but a legal imprisonment,
         and no cause of action for damages rises against the officer for
         lawfully executing the writ.       If, however,   the imprisonment    is under
         a warrant which is palpably illegal,        or issued without the authority
         of law, it constitutes a trespass       to which the officer will be liable
         in damages.”

              Article  793, Code of Criminal   Procedure,     as it now reads,
and Article   920, of the Code of Criminal   Procedure,     expressly  allow a
prisoner   Three Dollars    per day on fine and cost, for each day of his im-
prisonment.    We know of no valid statute which allows to a prisoner        con-
victed of a misdemeanor      Andyassessed  a pecuniary    fine the sum of one dol-
Honorable    K.   H. Dally,   Page   6




lar credit on his fine and costs for each day he is held in jail because                   of
his inability to pay his fine and costs in money.

              There is a long line of decisions which hold that when a prisoner
has remained in jail for the time required     by law to satisfy the amount of
his fine and costs, he is entitled to his release,   and that a writ of habeas corpus
lies to procure the discharge    of a defendant who has satisfied his fine and
costs.  Ex Parte Hill, 15 SW. (2d) 14; Ex Parts Clayton, 103 S.W. 630; Ex
Parte Woodroe.     101 S.W. 226; Ex Parte Spears, 90 S.W. 1011, and Ex Parte
Reeves,   53 SW.   1022 and others.

             “A person is not liable for the detention of another in
      circumstances    where the detention is authorized by law. The
      authority need not be expressed;    it is sufficient if, from all the
      circumstances,    the law would authorize the arrest.      However,  it
      is presumed    until the contrary is shown that the imprisonment
      was unlawful; the prosecution    need only prove the imprisonment,
      and it is for the defendants to justify it by showing that it was law-
      ful.”  (19 Tex. Juris. 550)

              Judge Critz,    in the case   of McBreath      v. State,    12 S.W.(2d)      118,
wrote :

               mCertainly it is not the law that an officer, or any one else,
      c.an imprison    a citizen of this state, without authority of law, and
      in violation of his plain, constitutional,   and statutory guaranty,
      thereby forcing him to resort to writ of habeas corpus to gain his
      liberty, and then set up the remedy he has forced on the party so
      illegally arrested     or imprisoned.  as a defense.?

             We have set out above the law applicable  to your first question,
but this Department  cannot pass upon the guilt or innocence of an individual,
this matter being within the province of the trial courts or juries of this
State.

            Your second question is answered             by our opinion No. O-1563,
a copy of which we are enclosing herewith.

              Trusting   that the foregoing    satisfactorily     answers      your inquiries,
we remain

                                                     Yours      very   truly
DBD:LM:da
APPROVED      DEC 9, 1939                     ATTORNEYGENERALOF                    TEXAS
/s/ Gerald    C. Mann
ATTORNEY      GENERAL   OF TEXAS              By   /s/    D. Burle       Daviss,   Assistant
APPR~VED~PZNJONC~MMITTEEBYBWB,CHAIRMAN
