L. E. Ward et al. v. Hugh L. White, County Judge, 86 Tex. 170

STAYTON, Chief Justice. The question submitted for decision is, “ Can one who is imprisoned under a conviction on a charge of seduction, which is a felony, and whose punishment is assessed at a pecuniary fine, be hired out for the purpose of collecting the fine, as is provided under the articles of Revised Statutes above cited (Revised Statutes,

article 3603, et seq.), where the offense is a misdemeanor ?” The statute provides, that 1 ‘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 hired out to any individual, company, or corporation until the money received from his hire is sufficient to liquidate such fine and costs in full.” Rev. Stats., art. 3602. This

article was amended by the Act of March 1, 1887 (General Laws, page 11), but no change was made that has any bearing on the question referred to. The statute authorizes the hiring only when a person has been convicted “ of a misdemeanor or petty offense,” and a hiring not authorized by statute is illegal. The Penal Code declares, that “Any offense which is punishable by death or imprisonment in the penitentiary, either absolutely or as an alternative, is a felony; any other offense is a misdemeanor.” Penal Code, art. 54.

It further declares, that “An offense which a justice of the peace or the mayor or other officer of a town or city may try and punish is called a petty offense.” Penal Code, art. 56. The punishment prescribed for the crime of seduction is ‘ ‘ imprisonment in the penitentiary not less than two nor more than five years, or by fine not exceeding five thousand dollars.” Penal Code, art. 814. Seduction, then, is a felony, notwithstanding, as an alternative punishment, a pecuniary fine may be imposed.

Such being the grade of that offense, the law does not permit a person convicted thereof to be hired in order to raise money to satisfy the fine and costs, as does it in cases of convictions for misdemeanors or petty offenses.

It may be that no good reason exists why a person convicted even of a felony, when the punishment assessed is only a pecuniary fine, should not be hired as is authorized when the conviction is of a misdemeanor or petty offense; but that is a matter for the consideration of the Legislature; and until hiring in such a case is permitted by statute, no person against whom a pecuniary fine has been assessed as punishment for a felony can lawfully be hired to raise money to pay the fine and costs. Delivered November 16, 1893.

The statute provides a different method of collecting fines and costs, which may be pursued without reference to the grade. of offense, and through this pecuniary fines imposed in cases of felony may be collected. Code Crim Proc., arts. 807-813.