I
                                                       R-657


          THti   ,!i                        NERAL
                       OFTEXAS




    Hona Howard Traweok       ODinion No. P-322
    County Attorney
    Motley county              Re:   Liability of a defendant,
    Matador, Texas                   upon   final   conv!ction   in
                                     a Justice Ceart, for pay-
                                     ment of commitment or re-
                                     lease fee, or both suoh
                                     fehs.
    Dear Sir:
              We refer to your letter of July 11, 1947, in
    trrhioh
          yam ask:
         “Ia the sheriff entitled to the statutory
         fee for commitment or/and release In a
         justice oourt case where the defendant Is
         not actually committed to jrll? In such
         case the defendant is arrested by the sher-
         iff and by him taken before #a, XV&+&%% of
         t‘nePeace who assesses a fine upon a plea
          of guilty and then allowed the defendant
         time in which to pay the fine, said arrange-‘
         ment being agreed to by the officer. Would
         the fact that the defendant should Day the
         Sine to the sheriff at the time of assess-
         ment and receive a receipt therefor make
         any differenae in regard to Nhe oiriaor*s
         feesP
              Your first question presents a case in which
    the sheriff arrested the defendant and took him to just-
    ice court where a pecuniary judeent  of convic,tionwas
    rendered against him; the justice of the peace, by agree-
    ment with the sheriff, allowed the defendant tfme in
    which to pay the judgment. Your second question presents
    a case In whfch the fine is paid to the sheriff at the
    time a peauniary judgment is entered,
              We are of the opinion that the Sheriff is,not
    entitled to a fee for ~commltment” of a defendant unless
    such defendant is confined in jail; and he is not entit-
    led to a fee for giving the defendant time in which to
                                                            ,



Han, Howard Traweek, Page 2, V-322


pay the judgment, But he is entitled to racefve one dol-
lar for final "release" of such a defendant from his cus-
tody in either case submitted by you upon payment of the
judgment in full if the sheriff had custody of the defen-
dant,
         Article 917, V.C.C,P,, reads:
     "The judgment, in case of convfctisn in a
     criminal action before a justice of the
     peace, shall be that the State of Texas
     recover of the defendant the fine and
     costs, and that the defendant remain in
     custody of the sheriff until the fine and
     costs are paid; and that execution issue
     to collect the same,"
         Article 787, V.C.C,P., reads:
          "When a judgment has been rendered
     against a defendant for a pecunfary 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 im-
     prisonment."
          Article 783, V.C.C.P., reads in part:
          "When the defendant is only fined
     the judqnent shall be that the State of
     Texas recover of the defendant the amount
     of such fine and all costs of the prose-
     cution, and that the defendant, if present,
     be committed to jail until such ffna and
     costs are paid; a D oR
          Article 1065, V.C.C.P,, fixes the fees of the
sheriff or other peace rfficers fm misdemeanor cases;
paragraph 5 reads: "For each commitment or releaee,ene
dollar."
          That means one dollar for each *commitment"
and one dollar for each "release". When the sheriff a-
greed to give the defendant time in which to pay the
pecuniary judgment for the fine and costs, he and his
bondsmen became responsible for the judgment. Spradley~
vs. State, 56 S. 1. 114, writ refused.  The sole respon-
sibility was his. The action of the justice of the peace
Hon. Howard Traweek, Page 3, V-322


is immaterial because such officer is not authorized to
take the defendant from the custody of the sheriff, or,
grant time in which to pay a pecuniary judgment for a
fine and costs. The defendant was not "committed" to
jail; was he "released", when the fine and costs were
paid?
          In Ex Parte Griffis, 145 S.W, (2d) 192, the
Court of Criminal Appeals construed the word "released"
as used in Article 1065, V.C.C,P* and said:
         "As we understand the statute the
    'release' for which the sheriff or con-
    stable may have the item of one dollar
    charged against an accused is the 're-
    lease' from the judgment directing that
    he remain in the officer's custody un-
    til the fine and costs are paid."
          Attorney General's Opinion No. O-693 (which
is conference opinion No. 3058, rendered in 1939) reads
as follows:
          "On February 13, 1928, this de-
     partment held in a conference opinion
     written by Hon. H. Grady Chandler and Han,
     Galloway Calhoun, Assistant Attorneys Gen-
     eral, that a release for which a peace of-
     ficer is allowed a fee of one dollar is
     for releasing or discharging a defendant
   ,.from the force and effect of a judgment;
     and the fee is allowed in all cases wlmre
     a defendant is convicted and discharged
     his fine and costs, whether under a plea
     of guilty or not guilty,  We quote from
     this opinion as follows:
         "'The term "release" must be con-
    strued according to its ordinary meaning.
    Webster's Dictionary defined release as
    follows:
          "'To let loose again; to set free
     from restraint; to give liberty to or set
     at liberty; to let go.'
          "'The dictionary also gives the word
     "discharge" as a synonym for "releaseuO
Hon. Howard Trezeek, Page 4, V-322


     11 t :!   ,‘.-,
                   0”  the Coc?e3’;’
                       i
                                   ,Criminal
                           p, ‘1. c,   .L
                                       I7

Procedure, as heretofore stated, provides
that the judgment of the Justice court shall
recite that the defendant is to remain in
custody of the sheriff until the fine end
costs a re paid. Articles 785, 787 and 792
provide for enforcing a judgment in all mis-
demeanor cases and make provisions for dis-
charging the defendantu The term “release”,
therefore, as used in the fee bill and as
defined in the dictionary, we believe is the
same as “discharge” and the officer who dis-
charges or releases a defendant from the
force and effect of a judgment restraining
him is entitled to collect the fee of $1000
for a release. As the judgment is the same
in all cases of conviction, whether under a
plea of guilty or a plea of not guilty, it
follows) therefore, in every case an officer
is entitled to a fee of #lQOO for a release.
But a fee is not allowed for a commitment in
every case unless the court is required to
commit the defendant to jail in default of
payment of the fine and costs or in the coup-
ty court, the defendant might be committea
to serve a jail sentence even though the
fine and costs are paid.’
     *It appears that this conference opia-
ion has been followed by this department for
more than eleven years; we are unable to
find any authority to the contrary; the op-
inion appears to be based upon sound reason-
ing; we therefore, approve and follow this
opinion,
     “You are therefore respectfully advised
that it is the opinion of this department that
a charge of one dollar for release is a proper
charge to be taxed as costs against the de-
fendant when a plea of guilty is entered and
the fine paid immediately after the defendant
isnotified of the amount and no commitment
iS,made, and that the officer who discharges
o.rreleases a defendant from the force and
effect of a judgment restraining him is en-
titled to collect the fee of one dollar for
a release.”
                                              .



Hon. Howard Traweek, Page 5,~~V-322


         'We adhere to the opinion O-093 and enclose a
copy thereof ror your information.


         Where   a pocluiary     judpmt    for a   rm
    and ooets, is rendered mgainst a derendant
    who is present in court, the sheriff is en-
    titled to receivs one dollar under the p-0
    vieions of Article 1045,, B.C.C.I., ror final
    release of the derendant from his custody
    when suoh judgment is paid in full, whether
    6uoh judC;ment be paid at the time 9f it8 6R-
    try or at a later date. The Sheriff ia not
    entitled to receive a fee f&r wconrmitmentw
    in such case unless the defendant is confined
    la jail. Art. 1065 V.C.O.P.; EX Part0 Orlfffa,
    145 S.W.  (2d) 192; Attorney General's Opiaien
    Iio.O-693.
                                   Yours very truly
                               ATTORNEY   OENERAL OFTEXAS




                                   Assistant




                               AOTIIG ATTORNEY GENERAL
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