                              AUSTIN.      TEXAS




                                 April     4, 1950

Bon. Robert Callaway                        0pZnion Ho. v-1031
DlstrLot AttolWy
Borger, Texas                               Re: conourTent or oonseau-
                                                tire credit for jell
                                                time in serving out
                                                peounlary rh33   aa-
                                                sessed in two or mora
                                                misdemeanoP convlo-
Dear   sirs                                     tions 0
              we refer   to     your     reoent    request   in which you
submit the folloting          questions:
       "1 . Where D, defendant,    is convioted of two
       or moM misdemeanors at the same time, and
       the penalty assessed for each is a peounlarg
       fine, and where D is confined Ln jail in de-
       fault of paynient of fines,   is D entitled to
       $3.00 per day on each fine, or must he serve
       out the fLnes conseoutlvely?
       "2.  If D Is oomioted  on oonseautive days
       would th@ result be any different.   in view
       &f Rx Parte Herrod, 175 8.H. (2d) 571"
          We quote the following APtioles from Vemiorils
Code of Criminal Procedure whfch em pertfnent to your
inqutry 0
              "783.  As to Fine.  - When the defendant
       is only fined, the judgment shall be that the
       State of 9!exas reoover   of the defendant, the
       amount of such fine and all costs of the pro-
       secutiond and that the defendant,     if present
       abe committed to jail until sucmhfine and costs
       are paid; or if the defendant be not present,
       that a capias forthwith issue, commanding the
       sheriff   to arrest the defendant and commit him
       to jail until such fine and costs are pazd;
        also, that execution may Issue against the
       property of such defendant for the amount of
        such fine and costs.
Ron. Robert Cellaway,   page 2   (v-1031)


           "785 T Discharging Judgment for Fin&. -
     When $he judgment against. a defendant Is for
     a fina and costs he shall bs discharged from
     the sY . When the amount thereof has been
              fully paid .
          "2. pyn remitted by the proper author-
          n3.   Uhe; he has remained in custody f&r
                the time required by law to satis-
                the amount thereof.
           "787.    Pay OP Jail.  - When a judgment has
     been rendered agatnst a defendant for a peoim-
     iary fine, if he is present, he shall be lmprl-
     ;o$ed in jail until discharged as provided by
         . A certified    copy of such judgment shall
     be sufrricient    to authotize such hprisoment.
            "793. Fine Discharged.   - When a defeiid-
     ant ,ls c?nvFcted of a misdemeanor and his pi@-
     ishment is assessed at a petunia
                                        z sf:$d;:dhe
     iS untible to pay the fine atid, COQ
     against him, he sag for such time as will~bat-
     isfy the judgment be put to work in the work-
     house, or’ on then county .farm, or ‘p,ubl%o lm-
     proveinents of the county, as @*ovided in the
     sucoeeding article;   or if there b% no such
     workhouse, farm or improvemsnts, he shell be
     imprisoned in jail for a sufficient      length of
     time to discharge the full amount of fina and
     costs adjudged against him* rating such labor
     or Imprisonment at Three (63.00) Dollars for
     each day thereof;   provided, however, that the
     defendant may pay the pecuniary fine assessed
     against hLm at any time while he is serving 8t
     work in the workhouse, or on ths coo&y farm,
     or on the public Improvements of the county,
     or while he is serving his jell sentence,       and
     in such Instances he shall be entitled       to a
     credit of Three ($3.00) Dollars foi. each day
     op fraction   of a day that he has served and
     he shall only bs required to pay the balance
     of the pecuniary fine assessed against him.”

           “797 * Discharge of Defendant, - A defend-
     ant who has remained in jail the len&th of time
     required by the judgment shall be discharged.
     me sheWrr shall return the copy of the juds-
     ment, 0~ ths aapias undef. which the defendant
     Eon. Robert Callaway,     page 3    (V-1031)


          was imprisoned,  to the proper      court,   stating
          how it was exe,cuted .”

                    In Ez a e Benti     41 Tex,Drlm.   201,   53 s.u.688
     (18991,   it    ia - s, a e :
                 “This is an original      proceeding in habeas
          corpus.     The applicant    alleges     the t he la
          illegally    restrained    of hla liberty     by the su-
          perintendent     of the county oonvlof ianr.          The
          facts a Feed upon show thathe           was fined in
          two nils,!iemeanor cases.     The trial     and oonvic-
                                  in the justice     court was In
                                                  assessed was a
                                       amounting     to $57.43;
          $ich    made the total of fine and costs $107.-
              . In August following,        applicant was tried
          in the county ooUFt, a@ convicted            of a’misde-
          meanor.     The fine assessed against hl.m was $grt,
          and the costs7were $50~90, - the total being
          $100.90; and in addition,         imprisonment in the
          county jail for 24 hours was assessed againsf,
          him. These were separate cases, end the judg-
          ment lo the last aase did not refer to the ror-
          lter.   Applicant,    Ln oPder to pay the fLne and
          costs in said two asses, aggregating $208.83,
          was placqc on the county conflat           or poor farm
          0s w00d q0mg.         Re alleges,    and it is agreed,
          that he has labormd on said term 324 days; that
          he was sick, and unable to work, 25 days; and
          that he did not do any labor on said farm for
          47 days, - 45 of mme being on Sunday; that~
          396 days have elapsed since applicant has been
          on.sald convict raw.         Applicant a ontends that
          said, judgmnta     were   not oumuletive,      and  that
          he had been imprlroned dn the first            case 24
          hours, and had been hired on the county few
          a sufficient     length of time to pay off the
          fine and costs in fhe first case, and that ho
          was entitled     to hlr discharge,      lrbgatiless   of
          the SLne and costs in the subsequent case.
                “The statute iwgulating oumlative    sen-
          tenees refers only to cases in which imprison-
          ment In the penitentiary    of the oounty jail 1s
          a part of the punishment (Code Cr. Proo. art.
          8&O); and It has been held this srtlcle    refers
-,
          as well to misdemeanors as to feloties    (Ex
          parte cox, 29 Tex.App. 84, 14 8. W. 396; RX
                                                                  -.
Hon. Robert Callaway,    page 4    ,(v-1031),


     parte Betea (TexSr.App:)   40 S.Y. 269).  A
     reference  to said article will ahow that Lt
     has no reference  to the DecuUary fines, but


     to otdPuiativ& pnnibhnwnts.    In such o8aes it
     whs held, wheti the punishment we8 imprisod-
     ment, that the ‘terms of punishment, when the
     senw, defendant was convicted   in two or mom
     cases, ran oonourrent with each other.       We
     are not advised ~of any case where the same
     rule was held applicable    to pecuntalrg fines.
     In such cases the fities were independent of
     each other, and the payment of bne was not a
     satlsfaotion   of the other.” (Lmphaslr added)
           In view of the foregoing it is our opinlbn that
where a defendant is convicted. of two or more misdemeancz%
at the same time, and the penalty assessed is ~8 pecuniary
fins; and the defendant Is oon.Mwd in jail in default of
payment of asid fines, he must serve out the time conse-          -
cutively.   The rule would be the same If the defendant Is
convicted  of two or more misdemeanors on the same day or
on oonseoutive   days.
          Article   774, V.C .C .P.,   provides   :

           “When the same defendant has been con-
     victed in two or more cases, and the punish-
     ment assessed in eaoh case is confinement In
     the penitentiaryor     the jail for a term of
     imprisonment,   judgment and sentence shall be
     pronounced Ln each base in the same manner as
     if there had been but one aonviction,    except
     that in ths discretion    of the couzt, the judg-
     metit in the second and subsequent oonviotions
     may either be that the punishment shall begin
     when the judgment aui sentence in the preced-
     ing conviction   has oeaaed to operate,   or that
     the punishment shall run concurrently    with the
     other case or cases, and sentence and execu-
     tion shall be accordingly.*
          It is apparent     that the above statute   is appll-
oable only to cases where the punishment assessed        is lm-
prisonment in the penitetitisry or jail and has        n o ap-
lication  whatever to cases where only pecuniary      fines
have been assessed.   Ex pa&e Banks, supra.
      ,




/--
          Ron. Robert Cellaway,     page ,5   (V-1031)


                    He are in eooord with your'opiniaathattlm   case
          of Rx p&pte’Rerrod is distinguishable   from this case by
          the fact th t the oonvbd there was not Only assessed
          fine but alio a jili~senteaoe.
                                     SUMMARY
                     If a defendant is convicted    of two OP
               more misdemeanors at the same time, the
               penalty assessed is .a pectiary    fine, and
               the’defendant   is odnfined in jail in default
               of payment of such fines, he must serve out
               the time consecutively.
                                              only to cases
                                               is lmprlson-
               ment ih the penitentiary   or the j.eil,  and
               the Wale would be the same even thou& such
               mlidemeanor o onvlc tions were on a onset utive
               days.
                                                   Yolurs very truly,
                                                      PRIGR‘DAEIXL
          APPROVED
                 :                                  Attorney General

          J. C. Davis, Jr.
          county Arra~rs Division
          Charles D. lsthews
          Rxec,+ive Assistant                              Assistant

          BA:mw
