     OFFKE        OF THE ATTORNEY
                                    AUSTIN   GENERAL OF TEXAS




Eonorabls      I-:. P:. Beaslep
county     Auditor
Collin   Cocuty
1:cKinaey,  Texas

Dear Sir:




                                                  ts asmxoa   agninst
                                                  .OO.  He mkes




                                                   nbout <O.OO addi-
                                                  plan &I fine ena
                                                   urity farm. Of
                                                     the def andant
                                                     for a pc?riOd Of

                      c.t:ostions   x wish    you v~0llia ans~m   for
         GLQare   these:

               “1. 1s a cz~:+iag :rof!ne the        pro;xlr jzoce-
         dure to follw~  uncier these Swt3          to commit the
         defendant  io the county farm?


         ror
                ~2, ::hould    the
                               dcfe:vltint be civaz
               tho aaolwt he has p3ia on h:a Eke
                                                           credit
                                                           utia costs
Honorable R. E. Beasley, page 2


     by subtractingthis amount or its equivalent
     from the statutory ten day period3
          "3. Should he be required to serve a total
     of ten days regardless of hou much money he had
     paid on his fine and cost?
          "4. Should the amount of money that he had
     paid before the oaplae pro Pihe was issued be
     returned to him and then the defendant be requir-
     ed to serve out the entire fine and costs on the
     county farm?
         "5. Is the arresting officer entitled to.
    hls fee in full from the part of money which
    had been paid or should he be entltled.toonly
    one half of his fees, or should he be entitled
    to a pro rata part of his fees in full in pro-
    portion that the amount of money paid bears to
    the total fine and cost?
          "6. Assuming the dePendant's fine and cost
    to be $15.00 ha Is entitled to a credit of $3.00
    Par each day that he servts at the county farm.
    Assuming that he goes to the county rarm and
    serves five days'and then wants to pay the bal-
    ance in cash and be releti:;sdfro5 the farm, just
    what amount should he be required to pay in oash
    in order to be released:;=
          Article 787, Code of Criminal Proaedure or Texas,
reads as Pollowa:
         When a judgment has been rendered against
    a defendant for a pecuniary Pine, if he is pres-
    ent, he shall be lnprisoned in jail until dls-
    charged as provided by law. A certified copy
    of such judgment shall be sufficient to author-
    ize such impriaonment.w
          Anlcle 788, Code of Criminal FroOedure of Texas,
reads as Pollows:
          Vhen a pcouniary fine has been adjudged
     against a defendant not present, a capias shall
     forthwith be insued for his arrest. The sherlff
     shall execute the same by placing,the defendant
     in jail.n
lionorableE. 1;.Beasley, Fage 3


          Article 7C9, Code fo Criminal Procedure of Texas,
reads as follows:
          "';-here
                 such copies issues, it shall state
     the rendition-andamount of thb ju?gaefitand
     the amount unp.aidthereon, and co.%.andthe sher-
     lff to take the defenciantand place him in jail
     until the mount due upon such jud,qXnt and the
     further costs of collectin the s&2:8are paid,
     or until the defendant is oth8Wise legally ah-
     charged."
          Article 792, Code of Criminal 7rocedure of Texas,
reads as follows:
                       '_
          ‘Wion a defennant has beez conmitted to
     jail in default of the fine and costs adjudged
    against him, the further enforcement of such
     judgment shall be in accordance with the pro-
    visions of this Code."
          Article 793, Code of Criminal procedure of Texas,
reads as follows:
         When a 48fendant in convicted OP a mlsde-
    meanor and his punishment is assessed at a pecun-
    iary fine, if he is unabl.3~to pay the fine and
    coats adjudged against tim, he may for such time
    as will satisfy the jufigmentbe put to won; in
    the workhouse, or on the cqunty Parm, or public
                 oP the county, as providnd in the
    improve-eilents
    succeedingarticle, or if there be no such work-
    house, Pam or improvements,he shall be lmprison-
    ed in jail for a sufficient length of time to eis-
    charge the Pull arount of fine and costs adjudgcb
    against him; raticg such labor or ImprisonMnt at
    Three Collars ($5) for each day t!iersOf;. . . ."
          Article 920, Code of Criminal Procedure,ofTexas,
reads as follows:
          “A d8fenciantplaced in jail on account of
     failure to pay t.hefine and costs cau be cils-
     chart;edon habeas corpus by shor:lng:
          "1. That he in too poor to pay the fine
     and costs, and
Honorable R. E. Beasley, Rage 4


          "2. That he has remained in jail a sufti-
     cient lon@h of time to satisfy the fine ami
     costs, at the rate of three,dollars for each
     day.
          "But the'defenaantshall, in no case undar
     this article, be discharged until he has been
     imprisoned at least ten days; and 3 justice of
     the peace may disCharg8 the defendant upon his
     shoviingthe same cause, by applioation to such
     justice; and when such application is granted,
     the justioe shall note the same on his docket."
          Article 1055, Code of Criminal procedure of Texas,
reads as iollows:
          "The county shall not-be liable to the of-
     ficer and vitness.having aosts in a misdemeanor
     case where defendant pays his fine and costs.
     The county shall be liable for one-half of the
     rees ot the officers oP.the Court, when the de-
     fendant Pails to pay his fine and lays hia fine
     out in the county jail or discharges the same
     by means of viorkingsuch fine out on the county
     roads or on any county project. hnd to py such
     half of costs, the County Clerk shall issue his
     warrant on the County Treasurer in favor of such
     officer to be paid out oi the Road and Bridge
    .Funa or other funds not otherwise appropriated.*
          The court of Criminal Appeals of Texas has deri-
nitely recognized that prisoners should be given credit
on their tines and costs for service in jail or in the
workhouse or other public Works. The court nlno definite-
ly recognized the right of a convict to serve part of his
time in jail and psy the balance in cash. See the case of
Ex Part8 Rill, 15 J. Iu. (Zd) 14 (T8XaS Court or Criminal
Appeals).
          The Court of Criminal Appeals of Texas has re-
COgniZ8d a distinction between the Credit to be allowed
for service in jail under Article 793 and Article 920 of
the Code of Criminal Procedure. Article   703, cup-a, ap-
plies to the satisfactionof JudFsents in misdemeanor
c3ses in courts other than Juaticc courts. Article 920,
supra, applies alOn8 to convictions before jUStiCeS of
the peace. 28e Rx Part9 Farcundez (Toxas Court of Crimin-
al Appeals), 57 C. ;'I.(2d) 578 nnd Rx I'arte!IcI.aur,hlin
(Texas Court of Criminal Appeols), 60 S. X, (Zd) 786.
IIonorableIi.E. Besslcy, Page 5


          ?Y8quote from opinion O-441 of this department
ES r0iiom :
             "It is the opinion of thin department that
    $3.00 per day is the proper rate for allowance
    or credit to be given prisoners who have beon
    convicted of misdemeanors for serving time in
    jail, or for working out their fines as provid-
    8d by law. . . . It is the further opinion of
    this depsrt&ent that Article 920 of the Code of
    Criminal Frooedure of Texas applies only to Con-
    victions obtnined 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. h’s fine and costs amount
    to $15,00; 5's fine and costs amount to z30.00
    and C'S fine and coats ano.untto $45.00. Under
    Article 920 Or the Cod8 of Criminal Procedure of
    TBXaS, although said article allov;s$3.00 per
    day for jail service, said article further pro-
    vides a nininum of ten days inqrisonriient.   A must
    serve the minimum of ten days.      B's fine and    .
    costs amount to $36.00 vihichdivided by $3.00
    would make ten days. C's fine and costs ariount
    to     ;!45.00;he is allowed $3.00 per day; he must
    serve 15 days.n
          !I'e
             quote frofiopinion MO. O-1015 Of this depart-
ment, rendered September e, 193S, as follows:
          *It is therefore,   our opinion that a pris-
     oner convicted in the justice court, when his
     total fine and costs is a sum Under @O.CO should
     receive credit for only one-tenth of the total
     amount for each day he serves. To illustrate,
     and carry Err.         '9 example rurtt!1er,
                                                A,
     whOs8 fine and costs amount to $l5.00 should re-
     ceive credit for $1.50 for 8ECh day served in
     custody; should he elect to pay the balance of,
     his obligation in cash after five days in jail,
     he should be required to pay Y7.50 in cash."
          Opinion :;o.O-1578 of this Department holds that
a constable is entitled under nrticle 1.055,Cod8 of Criminal
Yrocedure of Texas, to balf COSts on that part Of the time
a defoUdant rczains in jail or works for the county when he
so dischnr,:espart of the fine ond costs and paps ofl'a part,
and that the s&s shall be properly prorated.
Honorable I!.3. Beasley, Page 6


          Opinions Iios.O-469 and O-765 of this depart-
ment hold th.atwhere only a part of the fine anticosts
are collected, that the nioneycolleoted should go first
to the payDent of the costs and the balance, if any, to
the amount of the fine and that where thero is not enough
collect& to pay all ol the costs, the Eoney should be
prorated and that in such a case one officer haa no prior-
ity over another. x’equote from opinion X0. O-755 ak
follows: -
          *In view of the trial fee above provided,
     being a part of the costs, and by reason that
     the justice of the peace is paid by the county,
     It is our opinion that the $9.50 in question
     should be prorated on tho basis of 35.00 to
     the county attorney; $5.50 to the constable and
     $4.00 to the county, which figures approxlnate-
     ly sixty-four and a fraction aents on the dol-
     lar. The county would get its pro rata part of
     the payment.**.
          Opinions Kos. O-469 and 755, supra, cite Article
949 cf:the’-Code
               of CrirainalProoeclureof Texas, ahlch reads
as fcllovis:~~
          Qoney collected by an otficer open reoog-
     nlzance, bail baud8 and other obligations reoover-
     ed under auy provisions of this code, and all
     fines, forfeitures,judgments and jury tees, ool-
     lected under any provisions of this code, shall
     forthwith be paid over by the officers collect-
     ing the aame to the county treasurer of the prop-
     er county after first deducting therefrom the
     legal fees and consissions for collecting sasLe.w
     7UnderscorLng ours)
           You are, therefore, respectfully advise& as fol-
lows:                                           >
           1. Your first quention is answered in the affir-
mative.
           2. Your second question is answered in the affir-
rzative.
           3. Your thlzd question In answered in the negative.
         4. Your fourth question is answered in the nega-
tire. In your particular Latter the total of dofendantls
Konorable k. E. Beasley, Page 7


fine and costs, includin(r.
                          the costs of the cuGias pro fine
and mileage to the county fara, is :!z23.00.The defendant
should be allovted$2.30 credit on his fine and costs for
each day he serves on the county fern.in this case.
          5. In answer to your fifth question, it is the
opinion of this department that vrhereonly a part of the
fine and costs ase aollected, that the money collected
should go first to the payment of the costs and the baL
ante, if any, to the ariountof the fine, and that where
there is not enough coll.ectcdto pay all the coots, the
rboneycollected should be prorated betu:eenthe arresting
officer, the county attorney and the county, That no of-
ficer has priority over another in such E;atter. For ex-
a.%ple,if the fine end costs a&ouat to $23.00; as in your
case; the fee of t.hacounty attorney amounts to $5.00;
the fee of the constable amounts to $13.00 end the trial
fee amounts to $4.00; if tho defendant paid S6.00 in cash
and the balance is worked out on the county farm the arrost-
in6 officer would be entitled to $3.55 of the cash payz.ent,
the county attorney.vJouldbe entitled to $1.36 of the cash
payment and the county (as its portion of i.hetrial fee)
would be entitled to receive $1.09 of the cash paykent.
The a::restingofficer and the county attorney v*ouldalso
be entitled to receive payment from tbe county uuder Arti-
cle itJ55,Code of Criminal Procedure of Texas, one half of
the t-lance of their fees for the time the defendant work-
ed.oul the balance of his fine and costs. Under the emm-
ple quoted above the arresting officer would be entitled
to receive from the county the sum of $4.72; the county
attorney :ould be entitled to receive from the cbunty the
sum of $1.22. The total sum received by the arresting of-
ficer from both sources would be $3.27; the total susare-
ceived by the county attorney from both sources would be
G3.18.
            C. The amount due under your sixth question would
be $7.50.
          Trusting that this satisfectorilyanswers your
inquiry and with best regards, we are
                                    Very   truly   yours
