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