OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTM
Honorable Harry Sohulte
County Attorney
Dallala County
D&hart, Texas
Dear Sir8
of Criminal
stated
3, Revieod Code
when a defend-
fsdemeanor ,and
s Slno and Costs, and
by levying on
exeoution, but
ch fine and
prisonment In jail, is he
Cs8dit on ‘hic Sine and
.OO per day as
ne Numbers
O-338 and O-4417
“Considering the language of Ar-
tlole 793, Code ot Crhlnal Fsooedure,
readi% ~3f he is unable to pay the
fine and costs adjudged against him”
in oonneotion with this state of facts,
it is rcy iupresalon,and opinion that
Honorable Harry Schultz, Page 3
your o@iniona were not rendered in oon-
neotlon tith or meant to apply in suoh
a 0886 ae related.”
In the oaae OS Ex parte Guesie Ferguaon, deoldet.
October 86, 1939 (not.yet reported), the Court of Criminal
ADPeale. held $hat Artiole 793, Code OS Criminal Boo’edure,
ai-amended by Aots oS the Forty-Sir& Legislature, First
Called Seeslon, and Artlole 794a, 794b, 7940, and 7946,
Code OS Criminal Prooedure, are in oontravention OS both
the State and Federal Constitutions, and that the general
law providing Three ($3.00) Dollar6 per day credit ie now
in effeot and of force in all the oountles in the Stnte
where a defendant is convicted oS a misdemeanor, and hfs
punishment is assessed as a peounlary Sine.
Artiole 793, Code OS Criminal Prooedure, beiore
being emended 2eads:as follows:
When a defendant Is oonvioted of
a misdemeanor and his punishment is as-
seased aa a peouniary Sine, ii he is un-
able to:pay the fine and costs adjudged
against him, he may for suoh time as
will satiary the judgment .be put to
work~in the workhouse, on the county
farm, or pub110 improvements of the
county,. as provided ln~ the sloceeding
Article, or IS there be no suoh work-
house, farm or improvements, he shall
be imprisoned In jail for a sufficient
length OS time to diaoharge the full
amount OS fine and costs adjudged
against hImi rating suoh labor or lm-
prisonmeat at Three ($3.00) Dollars
for each day thereof.”
Artiole 783, Code or Criminal Procedure, read8
as Sollowet
When the defendant is only fined
the judgment shall be that the state of
Texas reoover of the defendant the
amount of such Sine and all oosts OS
the,proseoution, and that the defend-
ant IS present, be oommitted to jail
unt i 1 such fine and costs are paid! or
IS the defendant be not present, that
a oaplas forthwith issue, commanding
Honorable Barry Schultz, Rage 3
the eheriSS to arrest the defendant
and commit him to jail’until such
fine and costs are paid; also, that
exeoution may issue against the prop-
erty OS such defendant for the amount
OS such fine and oosta.*
Artdole 787, Code OS Criminal Prooedure, providea
that1
Vihen a judgment- has been ren-
dered against a defendant for a pe-
ouniary fine, if he ie present, he
shall be imprisoned in jail until
discharged. 8s~ provided by law. A
certified oopy of auoh judgment shall
be suffioient to authorize such im-
prlsonment.”
Artiole 785, Code OS Criminal Frooedure, reads as
r0i~ovje t
Y/hen the judgment against a de-
fendant is for a Sine and costs he
shall be discharged from the same:
“1. When the amount thereof has
been Sully. paid.
“2. When remitted by the proper
authority.
“3. When he has remained in cus-
tody for the time required by law to
satisfy .the amount thereof .d
It will be noted that the above mentioned atat-
utes provide that a judgment-for a fine and.oosta may be
disoharged either by payment, by retiisslon by the proper
authority, or by remaining in custody for the time requirea’
by law to satisfy the amount thereof, that if the defend-
ant Is present and Sails to make payment he shall be lm-
prlsoned in jail until diaoharged a&provided by law, and
that it he Is absent a oapias shall be issued for his ar-
rest, and that the judgment may be enforced by an exeoution.
Referring to Title 15, Chapters 1 to 4, inolusive,
and other provisions relating to oosts in orlmlnal oases,
and exeoution of judgment in such’caaes, we quote from
Texas Jurispruaenoe, Volume 11, p. 395, ae follows: .‘-
Honorable Harry Sohultz, Page 4
“Although a person may not be im-
prlsoned Sor debt, It. has been held
that ooats do not oonatltute a debt
within the meaning OS the oonetltution-
al lnhlbltlon.- In ever)! instanoe, It
has been held, oosta’are paid, worked
out, or oolleoted in the same manner
a.8 ‘the tine itself, and form a part
and paroel of the judgment. Provision
is made under all the statutes that re-
late to the eubjeot for the enforoement
of the collection of oosts by lnoarcera-
tlng the party in Jail, or working him
on the publio road and highways, or in
the pub110 work shops, or on the county
poor Sanns, or by hiring him out, as
.the case may be. The person oonvloted
OS a misdemeanor may, in lieu of pay-
ment of ooats, remain In jail for a
sufficient length OS time to diaoharge
the amount adjudged against him. . .
Artiole 784 OS the Code OS Criminal
Procedure provides ‘where the punish-
ment is . . . other than a Sine, the
judgment shall . . . adjudge the oosts
against the defendant, and order the
oolle?tion thereof as in otper oases.”
In view of this provision, the State may reoover
the amount OS Sine and costs In the manner provided for,
whloh may include several methods. It was intended by .the
use’of the word WoolleotionW in the latter part OS Article
784, supra, not to restrict the colleotion of costa to an
execution only, but to permit oollection as in other mis-
demeanor cases. Under Article 783, and Article 784, above
referred to, and in view of further provisions of the Code
of Criminal Prooedure, the defendant may be oonflned to
jail for euoh time as will result in discharge of the oosts,
although the punishment Is other than a.fine, notwlthstand-
ing the fact that the case may be decided under the provi-
sion of Article 793 OS the Code of Criminal PTooedure, pro-
viding that whore the defendant is convloted of a misde-
meanor, and. hls~ punishment asaeased at a fine, he may be
put to work, as specified, or oonfined to jail for a suf-
Sioient length of time to discharge the amount of fine and
oosts.
Article 791, Code or Criminal Procedure, reads a8
sollows t
Honorable Barry Schultz, Page 5
*In eaoh oaee of peounlary fine, an
exeoution may Issue tar the tine and
costs, tho a oaplae ~was issued ror the
defendant; and a oapias may issue ror the
defende~nt tho an execution.was issued
against hia property. The execution
shall be colleoted and returned as In .
civil aotions. When the exeoution has
been oolleoted, the defendant shall be ,
at once discharged; and whenever the line
and oosts have been legally disoharged in
any way, the exeoution shall be returned
eatisried.”
Article 919, Code or Crimiual Prooedure, pro-
vides t
Pin eaoh case ot oonvlotlon before.
a justice rr04 which no appeal is taken,
an execution shall Issue for the colleo-
tion of’ the fine and oosts, which shall
be enforced and returned in the manner
presorlbsd by’law in civil aotions be-
r0re juati0ea.n~
The last two statutes above quoted do not author-
ize the iasuanoe of an exeoution against the property of a
deiendant:who was present at the time the fine was imposed;
and an order committing the defendant to the oounty la11
until the fine and coats have been paid and direoting an
eseoution to isaue’ltit the same time is erroneous. This
oontentiau is upheld by the oase of O’Conner vs.. State, 40
Texr .27, by the following language:
We belleve the judgment of the
oourt oommitting the dsiandsnt to the
oounty jail until the fine and oosta
were paid, and direofing execution to
issue theretor at the same time, wss
not authorized by law or sanctioned
by the prs.otlce or the courta, end
proaume it was an error of the olerlc
to whioh the attention of the court
was not called.”
In the 0868 of 3% part& Smith, 8 S.W. (2d) 139,
we find the following language:
Ronorqble Harry Schultz, Page 6
“One convloted of a misdemeanor
my, under the provisions of Article
793, Code ot Criuinnl Prooedure, lay
out his flue and,costs in jail.”
Referring to Artiole 787, Code of~criminal Pro-
cedure, supra, we ‘quote from Texas Jurisprudence, Volume
10, pc 650, as follows:
“Just as the primary objeot 0)
the imposition OS a fine is puuish-
sient, so the princi.pal purpose of the
imprisonment authorized by this stat-
ute is not so much to enforce payment
us to insure puuishinent. The iupris-
orment oontmplated by the statute is
Incarceration in jail, unless the
conviot lo psrzittcd to work out his
fine in enother place. The duration
of the term of imprisouaent is the
same in either CBBe,*
&here the judgment against defendant is for fine
and Costa, he shall be discharged from the some when the
emuut thereof has been fully paid, r;hen remitted by the
proper authority, or %hen he has remAned in custody for
the time required by law to satisry the amount thereof, end
the person convicted of a mlsdeueanor my, in Lieu of pay-
. ment or costs, ramin in jail for sufricient length of tine
to discharge the amount adjudged agaain5t him,
In view of the foregoing authorities, you are re-
spectrully advised that it is the opinion of this depart-
ment that when a defondant is convicted of a misdezanor
and is able to pay his Pine and CoEtB he my eleot to sat-
isfy the same by imprisouuent in jail, and if the defend-
ant does elect to satisfy his fine aud coots by imprison-
ment in jail he is entitled to Q credit on such fine and
costs at the rate of $3.00 per day. However, this opinion
Is not to be considered as construing the application of
Article Q20, C. C, P., which relates to Justice Courts’. Yie
are enclosing a copy of our opinion No. 1015 which construes
Article 020, C. C. P.
Trusting that the foregoing fully answers your
Zionorable F&wry Schultz, Page I
inquiry, we remaln
Yours~ very truly
LiLd-aLL
BY
Ardell Jl'illiame
ASSiStWIt