December 10, 1952
Hon. Darwin L. Wilder Opinion No. V-1548
County Attorney
Denton County Re: Authority of a constable
Denton, Texas to accept bond before
trial from a prisoner
who has been placed in
county jail in the aher&
iff's custody and his
authority to accept such
prisoner's fine after
Dear Sir: conviction.
Your request for our opinion concerning mis-
demeanor cases reads In part as follows:
"(1) May a constable, after a prisoner
has been placed in the County Jail in cuato-
dy of the sheriff, accept bond before trial?
(2) After conviction and while prisoner is in
jail and custody of aherlfftlmay the constable
accept fine and commission?
"FACTS: The sheriff and constable are
in disagreement as to who should accept
bond or receive credit (commissioner) for a
fine in misdeameanor cases, usually D.W.I.
and liquor violations. The sheriff, as
custodian of the jail and prisoners, thinks
that the constable should not be allowed to
approve the bond and release the prisoner.
He further thinks that whenthe man has been
convicted and placed in jail to lay a fine
out, but later his friends pay him out, that
he, the sheriff, should be the proper person
to receive the fine and collect the commission."
Article 5116, V.C.S., provides in part:
"Each sheriff is the keeper of the jail
of his county. He shall safely keep therein
all prisoners committed thereto by lawful
authority, subject to the order of the proper
Hon. Darwin L. Wilder, page 2 (V-1548)
court, and shall be responsible for the
safe keeping of such prisoners. 0 D ."
Article 42, V.C.C.P., provides:
"When a prisoner is committed to jail
by warrant from a magistrate or court, he
shall be placed in jail by the sheriff, It
is a Violation of duty on the part of any
sheriff to permit a defendant so committed
to remain out of jail, except that he may,
whena defendant is committed for want of
bail, or when he arrests in a bailable case,
give the person arrested a reasonable time
to procure ball; but, he shall ao guard the
accused as to prevent escape."
Clearly a constablesmay accept and approve a
bond In a misdemeanor case where he makes the arrest
after a warrant is issued and before the defendant Is
placed in jail. Arts. 270 et seq., 286, 454, V.C.C.P.
However, after the defendant has been placed in jail
we believe the above quoted statutes confer exclusive
jurisdiction in the sheriff of all prisoners who have
beenplaced in his custody and lodged in jail. There-
fore, it Is our opinion that a constable may not accept
bond before trial of a defendant charged with a mia-
demeanor after the prisoner has been placed In the
county jail in custody of the sheriff.
The statutes which are'pertinent to your
second question are Articles 787, 788, 789, 795, 796,
797, and 783, V.C.C.P. and provide aa followa:
Art. 787. %hen a judgment has been rendered
against a defendant for a pecuniary fine, if
he is present, he shall be imprisoned in jail
until discharged as provided by law. A
certified copy of such judgment shall be
sufficient to authorize such imprisonment."
Art. 788. %hen a pecuniary fine has been
adjudged against a defendant not present, a
capias shall forthwith be issued for his
arrest. The sheriff shall execute the same
by placing the defendant in jail."
Hon. I$rwin L. Wilder, 'page3 (V-1548)
Art. flg.,%here such capiaa issues, it shall
state the rendition and amount of judgment
and the amount unpaid thereon, and command
the sheriff to take the defendant and place
him in jail until the amount due upon such
judgment and the further costs of collecting
the same are paid, or until the defendant is
otherwise legally discharged."
Art. 795. ?ihen, by the judgment of the court,
a defendant is to be imprisoned in jail, a
certified copy of such judgmerkshall be suf-
ficient authority for the sheriff to place
such defendant in jail."
Art. 796. "A capias issued for the arrest
and commitment of one convicted of a raiade-
meanor, the penalty of which or any part there-
of Is imprisonment in jail, shall recite the
judgment and command the sheriff to place
the defendant in jail to remain the length of
time therein fixed; and this writ shall be
sufficient to authorize the sheriff to place
such defendant in jail."
Art. 797. "A defendant who has remained in
jail the length of time required by the judg-
ment shall be discharged. The sheriff shall
return the copy of the judgment, or the
capiaa under which the defendant waa imprisoned,
to the proper court, stating how It was execut-
ed."
Art. 783. "When the defendant is only fined
the judgment shall be that the State of Texas
recover of the defendant the amount of such
fine and all coatsof the prosecution and
that the defendant, if present, be committed
to jail until such fine Andycoats are paid;
or if the defendant be not present, that a
capiaa forthwith issue, commanding the sheriff
to arrest the defendant and commit him to jail
until such fine and coats are paid; also, that
execution may Issue againstthe property of
such defendant for the amount of such fine
and costs.'
Hon. Darwin L..Uilder, page 4 (v-1548)
It is seen from the above statutes that the
sheriff is required to imprison the defendant in such
a case upon a commitment being issued. The "commit-
ment" which the sheriff exe,cutesin such cases Is a
certified copy of the judgment, if the defendant is
present, as provided in Article 787, aupra. If in
such a case the defendant is not present, the "capias"
as authorized by Article 788 and 78g1 supra, is iaaued
and is the commitment.
It would appear that the sheriff has exclu-
sive custody and jurisdiction ,ofsuch prisoners placed
in his custody and lodged in the county jail. Further,
he is required by Article 797, aupra, to make a return
to the proper court showing how the c mmitment has been
executed. The sheriff and his bondam are liable on
the sheriff's official bond~for the fin
k .and costs until
they are~paid or otherwise~legally discharged in such
casea. Spradley v. State, 56 S.W. 114 (Tex.Civ.App.
1900, error ref.). Since the sheriff is liable for
the collection of the fine and coats-and further since
he is required by Article 797, supra, to make a return
showing how the commitment has been executed, we agree
with you that the sheriff is the proper person to
collect the fine and costs in misdemeanor cases where
the defendant has been',placedin the county jail, and
the constable is unauthorized to collect same. In such
cases the sheriff receives credit for the release
fees.
S-Y
When a prisoner charged with a miade-
meanor haspb&en arrested by a constable
and placed in county jail in the custody
of the sheriff, the sheriff is the proper
person to accept and approve bail bond
pending trial. Art. 42, V.C.C.P.
After the defendant has been convicted,
given a fine, and placed in jail for failure
to pay the fine, the sheriff is the proper
,Hon.Darwln L. Wilder, page 5, (v-1548)
person to accept the payment of the fine
and receive credit for release fee when
the payment is made.
Yours very truly,
APPROVED: PRICE DANIEL,
Attorney General
J. C. Davis, Jr.
County hffalr8 DlvLaion
Mary K. Wall BY
Reviewing Assistant &-uce Allen
Assistant
Charles D. Mathews
First Assistant