Untitled Texas Attorney General Opinion

R-146

Hon. George T. Thomas Opinion No. v-109
County Attorney
Howard County Re: Whether or not a Coun-
Big Spring, Texas ty Attorney may dls-
miss certain cases
pending before his
court, and the lla-
blllty of the county
for fines tina costa
collected.
Dear Sir:
Your request for an opinion from this Depart-
ment is as follows:
"During 1945 and I946 certain cases
were filet3 on the criminal docket of the
County Court of Howard Count$'whlch have
not been disposed of, but a check of the
monthly reports~of the County Clerk shows
that in some of these cases the fine and
costs were paid, and in some of them the
Defendant has laid out his fine ana costs
in jail. There are no docket entries and
no judgments In these cases. The person
who was Gounty hag8 during such period la
*

. I

now deceased. :..
"The present county judge has stated
that he.does not want to enter judgments
~.~&pro'tunc because inquiry among the of:,
ficers'hanallng the cases has shown that
in most of them the Defendant maae no ap-
pearanoe before the court, but merely paid
to the arresting officer a minimum fine and
;,
costs. (Such being accepted by such Offl-
oera with the agreement of, and under ln-
atructlone of the County Judge.1
We have been unable to arrest the De-
fendants again In these cases. If we were
able to do so, we could solve the matter by
bringing them before the court and entering
Hon. George T. Thomas - Page 2 (V-109)

a judgment.
“Under such facts, will you please
give your opinion on the following:
n1. Can I, as County Attorney, leg-
ally dismiss such cases, and If so, what
effect does that have toward making the
County liable for return of the fines and
costs collected?
“2. Should the present County Juilge,
under proper motion thereyor, er,ter judg-
ment nunc pro tune In spite of the method
on-which the fine and costs were paid, that
~18, without appearance be’fore the oourt and
without aotual sentencing by the court?
“3. If such cases capnot be ai8p0.90a
of in either of the above mMhods -- how
0an they be aisp0f38a of?”
Artlole 577, V.C.C.P., is as follows:
9?he Qistr.lat or county attorney-may,
by permission of the court, dismiss a orlm-
inal action at any time upon filing a wrlt-
ten statement with the papers in the case
setting out his reasons for such di&ulssel,
which shall be incorporated in the judgment
91 diSdpiS8&1. No case shall be ait3mif383ea
without the consent of the presiding judge.”
In State va. Anderson, reported in 26 S.W.
(2ai 174, Judge Leaay, speaking for the Supreme .,Court ,
had this to say in regara to a dlsml8sal of a orlmlnal
case :
*A number of state8 have enaoted sim-
ilar statutes to prevent the very abuse
that actuated the passage of ,the above ar-
ticle of the Code of Criminal Procedure.
The purpose of such statutes Is indicated
in various deolslons, among other@, the
ease of People v. MoLeoa, 25 Wend. (N.Y.)
483, 37 Am. Dec. 328, wherein it is said:
rrtIt Is said In New York that be-
causa at common law the power of the at-
torney general had been delegated to dls-
Hon. George T. Thomas - Page 3 (V-109)

trlct attorneys in nearly everything
pertaining to inaiotments and other
orimlnal.proceedlngs local to their
respective counties, the Legislature,
finding the power In so many hands,
and fearing its abuse, provided that
it shod not'thereafter be lawful for
any district attorney to enter a no110
prosequl upon any indictment or In any
other way discontinue or abandbn Sam
without the leave of the court having
jurisdiction to try the offense charged.*"
In view of the foregoing authorities and the
facts aet out in your request, It Is the opinion of thie
Department that the County Attorney may, with the permls-
slon of the Ctiurt, legally dismiss such cages.
If such oases are dismissed, you ask further
what effect does that have toward making the county lia-
ble for return of the fines ana costs colleoted. The, an-
swer to this question depends on whether the fines.were
paid voluntarily or involuntarily. In 40,&n. Jur., B157,
pp. 020-821, we find the following:
It Is a universally r,ecognized
rule that money voluntarily paid under
a claim of right to the payment and
with knowledge of the facts by the per-
son making the payment cannot be re-
covered back on the ground that the
olalm was lllegal.W
We quote from 40 Am. Jur., I] 220, pp. 864-
865 as follows:
"The rule that illegal payment8
coerced under duress or compulsion may
be reooverea, provided the compulsion
furnishes the motive for the payment
sought to be recovered, and prooeeds
from the person against whom the action
Is brought, Is supported by a number of
cases In which fines have been Illegal-
ly or Improperly Imposed and paid by the
accused under circumstances constituting
duress, especially where the payment Is
to avoid or secure. release from lmpris-
onment for nonpayment of the fine, It
. .

Hon. George T. Thomas - Page 4 (V-109)

being held that a payment-made un-
der these circumstances Is an lnvol-
untdry ,one, and that the fine may be
recovered. TJut, In accordance with
the established rule already dls-
cussed, It appears to be well settled
that money voluntarily paid as a fine,
with knowledge of the facts, cannot
be recovered, and the rule that money
paid unfler 3 mistake of law, with full
knowledge of the facts, 1s not recov-
erablp unless the payment was lnducd
by the fraud or Imposition or the un-
due adva'ntage of the one receiving It,
or was made under duress, has been ap-
plied."
Vie quote from 26 A.L.R., 1124 as follows:
nOrdinarily,' the question. of
whether one who has paid a fine illeg-
ally or lmproperiy imposed upon him
can recover back the amount so paid
may be said to depend upon certain fac-
tors, chief of which 1s that of volun-
tary or involuntary payment. If the
payment is made under clrctistances
which amount to coeroion or duress so
that it must be 'regarded as an Involun-
tary one, the fine may'generally be re-
oovered; otherwise not. The oases in
which It has been held that the payment
was under duress are usually those in
which the aocused was imprisoned or was
threatened with imprisonment and pay- :.:
ment of the fine wasinecessary to avoid
or secure release from such lmprison-
merit."
In' Cornstook v. Tupper, 50 Vermont, p* 596,
money was pala to an attorney employed to prosecute the
,one paying the money for unlawfully selling liquor and
was afterward paid to the county clerk. No warrant had
been served and of course, there was no record of a fine
having been imposed. A complaint, however, had been
drawn and a warrant Issued. The trial court found in a
suit brought to recover the money that it was paid to
save plaintiff from prosecution; that the proceeding8 in
the settlement were Illegal, but that, the money having
Bon. George T. Thomas - Page 5 (V-109)

been paid to purchase the peace of the plaintiff', he was
not entitled to recover It. The Supreme Court said:

"This must be regarded either as
a voluntary payment In satisfaction and
discharge of a claim made upon the plain-
tiff or to buy off from and quiet a crlm-
inal prosecution to which he was exposed.
Nothing in the character of extortion or
duress Is shown that relieves the trans-
action from the character, or the plaln-
tiff from the position, which we.asslgn
to them as'above. This being so, plaln-
tiff cannot have the money back by ac-
tion.". (See also Houlehan vs. Kennebec
County, 108 k??lne 397.):
In Uale, et al, vs. Simon, et al, reported
In 267 S.W. 467, which was a sult for recovery of mOney
alleged to have been paid under duress, Judge Bishop of
the Commission of Appeals had this to say:
"There can be no duress unless
there Is a threat to do some act which
the party threatening has no le& right
0 0. I
Certainly here we do not have such fads ex-
lstlng. We must assume that the officer had a right tb
make the arrests and also place the defendants In jail.
Just beoause they paid the fine rather than make bond
and wait for trial Is not sufficient grounds alone to
oonstltute involuntary payments.
In view of the,foregolng facts and a~uthori-
ties, you are respectfully'advlsed that it is the opln-
ion of this Department that the county Is nat liable for
the return of the fines and oosts paid by the defenaents
under the circumstances set out In your letter.
Article 580, V.C.C.P., provides as follows:
"In all prosecutions for felonies,
the defendant must be persdnaily present
at the trial, and he must likewise be
present in all cases of misdemeanor when
the punishment of any part thereof is lmi
prlsonment in jail. When the record in
the appellate court shows that the defend-
Hon. George T, Thomas - Page 6 (V-109)

ant was present at the commenoement,
Or~anY portion of the trial, it shall
be presumed in the absence of all ev-
idence in the record to the contrary
that he was present during the whole
trial."
Article 518, V.C.C.P., Is as follows:
"A plea of guilty in a misde-
meanor case may be made either by the
.defendant or his counsel In open court.
In such case, the defendant or his
counsel may v?aive a jury, and the pun-
ishment may be assessed by the court,
either upon or without evidence, at the
discretion of the court.*'
In your request you do not state whether or
not the offense with which each defendant was charged
was one In which the punishment may be by confinement in
jail..
The Court of Crlmlnal Appeals has recently
held that where the judgment in a misdemeanor case as-
sessed a jail penalty, It idas error for the Court to tiry
the oasa in the absence of the aooused. (See Henderson
vs. State, 127 5.17. (2) 902; Stew& ~8~ State, 127 S.W.
(2) 903.)
It appears that'the law clearly z%qulres the
presenae of the aocused at his trial for a miSd0meanOr,
the punlshment of which may be confinement in jail.
Therefore, it is the opinion of this depart-
ment that the present County Judge cannot now sentonoe
the defendant in his absence in any guch case where the
pdnishment may be oonflnement In jail even If there is .
now suffiolent evidence before the Court for 3 osnvictiolu
Ifi answer to C;uestion No: 2 ce quote from 12
Tex. Jur., p. 713-4-5-6 as follows:
"Ei 352--Nunc pro tune Entry -- In General
("If there is a failure from any
cause vrhqtever to ,enter judgment and pro-
nounce sentence during the term, the judg-
ment may be entered and sentence pronounced
Hon. George T. Thomas - Page 7 (V-109)

at any succeeding term of the court,
unless a new trial has been granted,
or the judgment arrested, or an ap-
peal has been taken.' (Art. 772,
V.C.C.P.) (Brackets ours)
"The court also has power inde-
pendent of the statute to enter juag-
ment nunc pro tune.
”
.The act applies and per-
mits thi &try of a nunc pro tune
judgment In cases where the judgment
as orlgl lly entered does not In
fact exp:ss th judgment rendered.
. . . (UndersooLg ours)
"% 353--Prooedure--Effect
"To warrant the entry of a judg-
ment or sentence nunc ~pro tuno there
must be proof that the ProDosed jUaR-
ment or sentenoe was theretofore ac-
tually rendered or pronounoed; b t
this proof may be made as well by"pa-
rol as by reoord evidence. (Emphasis
ours)
*Notice of the proposed entry
must be given to the acoused; . 4 ."
.We assume from your letter that the provis-
fon in Article 518, supra, was not complied with. That
is, the defendants did not plead guilty in o en court
either in person or by counsel qd, therefore,
%GiG-has
never been a legal plea of guilty made by the defendants
in such cases.
The~re was never any kind of judgment or een-
tence entered. It Ia true that the' Sheriff acaepted the
fine and oosts'from each defendant; but this will not suf-
fice. To permit a Sheriff to accept a plea of guilty la
contrary to the statute as well as public polfoy. The
Judge Is the only person before whom one may enter such
a plea. This is a power or duty Imposed upon the Judge
and la one which cannot be delegated to another.
Therefore, since there has never been a juag-
ment or sentenoe.rendered and In view o,f the foregoing
Hon. George T. 'l'homas - Page 8 (V-109)

facts, as well as the above quoted authorities, you are
respectfully advised that it is the opinion of this De-
partment that the present County Judge may not legally
enter 3 nunc pro tune judgment In any of such cases.
In answer to Question Ns. 3, it is the opin-
ion of this Department that the only legal way in which
disposition may be made In such cases Is by complying
with answer ??o. 1 oC thin opinion.

1. The County Attorney may dlsmigs
criminal oases with the consent of the pre-
siding Judge where the defendants cannot be
arrested and where there has been no legal
plea of.gullty entered. 'ATEj ~~;lr .".,";c~~c~
State v. .%aderson, 26 S.%'.
oases are dismissed :vhc-rc the deferidnnt has
paid 3 fin1 and costs to the sheriff without
judgment of the Court, such payment is volun-
tary and m3y not be recovered by the defend-
ant from the county.
2. Where there was no judgment or
sentence actually rendered, the County Judge
cannot legally enter a nunc pro tune judgment.
(12 Tex. Jux-.~ pages 713-4-5-6; Art. 772,
V.C.C.P.)
Yours very truly,
ATTORNEY
GENERAL
OF TEXAS

,BA:djm:wb

APPROVXD
MARCH28, 1947

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ATTORNEYGENERAL OFTEXAS