
    Ex parte SMITH.
    (No. 11951.)
    Court of Criminal Appeals of Texas.
    June 6, 1928.
    Costs <§=322 — Detention of prisoner for nonpayment of costs after payment of fine and serving sentence, in felony case, held illegal (Code Cr. Proc, 1925, art. 1018).
    Detention for payment of costs, of prisoner, who had s»rved sentence and paid fine under conviction in felory case, held, illegal, though Code Cr. Proc. 1925, art. 1018, makes costs and fines paid by state in felony cases charge against convict; there being no provision for hiring out convict or allowing credit by confinement in jail in case of felonies as is provided for misdemeanors under article -793.
    Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
    Proceeding by E. C. Smith to secure his release from the custody of the Sheriff of Van Zandt County. Prom an order of the district court remanding petitioner to the Sheriff’s custody, petitioner appeals.
    Reversed, and petitioner discharged.
    Earl M. Greer, of Wills Point, for appellant. A. A. Dawson, State’s Atty., of Austin, for the State.
   BATTIMORE, J.

This is an appeal from an order of the district court of Van Zandt county remanding appellant to the custody of the sheriff in default of the payment of costs assessed against him in a felony case.

Prom the record we learn that appellant was convicted of a felony, to wit, driving an automobile on a public highway while intoxicated. His punishment was fixed at 90 days in the county jail and a fine of $25. It is shown that he has served the 90 days in jail, and has paid his fine. It further appears that in some manner $315 costs have been taxed against him in said case, and that he is now being held by the sheriff in default of payment of such costs.

Our statute makes no provision by which costs in a felony case may be collected by hiring the convict out, as in misdemeanor cases, nor is there any statute allowing him credit on such costs, or providing for payment thereof, by confinement in the county jail. Notwithstanding the attention of the Legislature was called to this “unfortunate hiatus” in the law in the early case of Ex parte Biela, 46 Tex. Cr. R. 487, 81 S. W. 739, in 1904, no law has been enacted to correct this omission. As far as can be determined Valentine Biela, the convict in the case, may have remained in jail for 24 years for his failure or inability to pay the costs adjudged against him in that case, for this court held that it was without authority to release him. We will not so hold in this case.

The state is primarily liable for costs in felony cases; and while we recognize that, under the provisions of article 1018, C. C. P. 1925, in such cases, save those punished by death or imprisonment for life, all costs and fees paid by the state shall become a charge against the convict, still we will never subscribe to the doctrine that, when such convict serves out his term of imprisonment, whether it be one year or two, or 90 days, as the case may be, he may still be imprisoned an indefinite length of time in lieu of payment of costs accrued in such case. One convicted of a misdemeanor may, under the provisions of article 793, C. C. P. 1925, lay out his fine and costs in jail, being allowed a credit thereon at $1 per day. Contrariwise, one convicted of a felony, if unable to pay the costs, could be kept in jail a lifetime for failure to pay the costs which might have accrued in such case, he being given no allowance for remaining in jail in lieu of payment. This seems assuredly to be cruel and unusual punishment, which is denounced by our Constitution, and to prevent which we hope this court will never hold itself impotent. No other cause for holding this appellant appearing, save that he is unable to pay the costs charged against him in a felony case, he will be discharged. This in nowise militates against any claim for costs enforceable against any property of appellant legally liable therefor.

The judgment remanding appellant will be reversed, and his discharge ordered.  