The appellant was tried for a misdemeanor before a Justice Court in Houston County, and convicted, and fined $5. The costs amounted to $14.85; the total of said fine being $19.85. The defendant was committed to jail on the 17th of February, 1895, for failure to pay said fine and costs. He staid in jail till the 1st of March, 1895, when he made and filed his affidavit of inability to pay this fine and costs adjudged against him. It has been held at the present term of this court (see Ex Parte Richmond, ante, p. 112), following Ex Parte Hunt, 28 Texas Criminal Appeals, 361, that the convict, after making and filing his affidavit with the county clerk that he was too poor to pay fine and costs, was entitled to a credit of $3 a day on said fine and costs for each day that he was confined in jail after making his said affidavit. In this case, however, it is contended, that the appellant did not want to be hired out, and that, consequently, he was not entitled to the credit of $3 a day for each day that he might lie in jail. The proof appears to be conflicting upon this point, but conceding that the appellant not only did not wish to be hired out, but that he absolutely declined to be so hired out, we hold that it is immaterial. It is not optional with the county convict whether he *Page 276 shall be hired out or not. It is the duty of the Commissioners Court to so hire him out. Rev. Civ. Stats., art. 3802, et seq. And where the pauper's affidavit is made, this becomes mandatory (Code of Criminal Procedure, article 816) if the convict would escape the payment of the fine and costs at the rate of $3 per day in jail. The law in this respect is intended for the benefit of the county, which pays the expense of the convict while in jail. If he is hired out, and not in jail at the expense of the taxpayers, the law allows him the full benefit of his wages to be credited on his fine and costs; but in no event is such credit to be less than 50 cents for each day. There was no necessity for the county judge to have consulted the wishes of the convict in this case, but as soon as the affidavit was made he should have hired him out, and if the convict had proven refractory, and had refused to labor, such labor could have been enforced. Rev. Civ. Stats., art. 3593. After making the affidavit in this case, the appellant was permitted by the county judge to remain in jail, and when the writ of habeas corpus was sued out in this case he had remained in jail for eight days, a length of time, at $3 per day, more than sufficient to have discharged his fine and costs.
The judgment of the lower court is reversed, and the relator, appellant in this case, is ordered discharged.
Reversed and relator discharged.
Judges all present and concurring.