Ex Parte Duren , 40 Tex. Crim. 162 ( 1899 )

This is an appeal from a habeas corpus proceeding had before the county judge of Brazos County, in which relator was remanded to the custody of W.D. Yardley, and from the order of the court he prosecutes this appeal.

It appears from the record that relator was convicted in the District Court of Brazos County, on the _____ day of April, 1898, of an aggravated assault, and his punishment assessed at a fine of $25 and costs, amounting to $73.46; the total fine and costs adjudged against appellant being $98.46. Applicant was hired out by the county judge of Brazos County on the 7th of April, 1898, to W.D. Yardley, to pay said fine and costs adjudged against him. The hiring of applicant was at the rate of 25 cents per day. Applicant contends that the county judge had no right to hire him at the rate of 25 cents per day; that article 3744 of the Revised Statutes authorizes him, when hired out, to receive, as a credit against his fine and costs, 50 cents per day; and he claims that it would only require 197 day's labor on his part to pay off his said fine and costs at 50 cents per day, and that he has already served more than that length of time, and should be enlarged. The contention of the State is that a proper construction of said article 3744 authorizes the county judge to hire appellant out at 25 cents a day, and that at said rate the time of said convict will not expire until he has worked 394 days, or, at least, the term of hiring will not terminate until the expiration of one year; and it is insisted that the construction of said article should be liberal in behalf of the State, as the collection of such fine by a hiring is not a penal statute.

We can not agree with this contention. The statute authorizing this punishment by hiring, in our opinion, is highly penal in its terms; and it is entitled to a liberal construction, if that were necessary, in favor of the convict. Formerly it does not appear that there was any limitation in favor of the convict as to what he was to get per day for his labor when hired out to a private party. The statute evidently contemplated that he was to be hired out at such rate as could be procured for his services, and such hiring was to continue until, by his labor, he had discharged the fine and costs adjudged against him in full. See Rev. Stats. 1879, title 71, chap. 10. And a different rule appears to have been applied to convicts worked, by the county on its own farm or workhouse, or on public works of the county. In such case the convict was to be credited with $1 per day on account of his fine or term of imprisonment. In 1887, article 3602 of the Revised Statutes of 1879 was amended. See Acts 20th Leg., p. 11. By the amendment, county convicts hired out to private individuals were authorized to receive 25 cents a day, to be credited against the fine and costs; and it was provided that in no case should the term of his imprisonment extend beyond two years. In 1895, on the revision of the Code, article 3602 is brought forward as article 3744, but, as brought forward, it is in an amended form. This article reads as follows: "Any person who may be convicted of a misdemeanor or petty offense, and who shall be committed to jail in default of the payment of the fine and costs adjudged against him, may be worked upon the public roads or upon county farms of the county in which said conviction is had, or be hired out to any individual company or corporation within the county of conviction, to remain in said county, and the proceeds of said hiring, when collected, shall be applied: First, to the payment of the costs, and second, to the payment of the fine; and every convict shall be entitled to a credit of 25 cents on his fine and costs for each day he may serve under such hiring, including Sunday; and he shall be discharged at any time upon payment of the balance due on his fine and costs, or upon the expiration of his term of service, his term of service in no event to be greater than one day for each 50 cents of fine and costs; provided, that in no case shall the counties be responsible to the officers for their costs, and in no case shall such convicts be hired out for a longer period than one year for failure to pay a fine and costs, and on the expiration of said time, unless by his hire such fine and costs have been sooner paid off, said convicts shall be finally discharged." We do not understand it to be questioned that the Legislature, in passing the Code, had a right to amend this article as was done. As amended, it does not occur to us there is any difficulty as to its proper construction. True, it provides that "every convict shall be entitled to a credit of 25 cents on his fine and costs for each day he may serve under such hiring;" but it further provides, "His term of service in no event to be greater than one day for each 50 cents of fine and costs." It does not matter what may have actuated the Legislature in making this change; whether it was by accident or design is immaterial. The language used could not be stronger. The act is emphatic in its terms, and declares specifically that in no event shall the term of a convict's service be greater than one day for each 50 cents of fine and costs; that is, in all cases, the convict shall be entitled to a credit of 50 cents against his fine and costs. And we understand by this is meant that when, by his services at 50 cents per day, he has discharged his fine and costs, he is entitled to be released. We are not concerned here about other provisions of the statute which relate to the officers or to the payment of their costs. That is a matter between them and the county. But we do hold that the Legislature has, by an express provision of the law, fixed the rate which the convict shall receive against his fine and costs. We regard it as a humane provision of the law, and one to which the convict is entitled; and if there were any difficulty in the construction of the statute in question, which there is not, it would be our duty to construe it in favor of the applicant in this case. The judgment of the lower court is reversed, and the relator is ordered to be discharged.

Reversed and relator discharged.

DAVIDSON, Presiding Judge, absent.