THEA'ITBECNEYGENERAL
OF TEXAS
AunTIN. TEzxas 78711
March 27, 1973
Honorable John Henry Tatum Opinion No. H- 21
County Attorney, Angelina County
P. 0. BOX 582 Re: Whether sentence of person
Lufkin, Texas 75901 convicted of felony may be
reduced by time that he has
spent in county jail awaiting
determination of his appeal.
Dear Mr. Tatum:
In your request for the opinion of this office you state that a man in
the county jail was convicted of armed robbery, was sentenced to four-
teen years in the Texas Department of Corrections, and has been in
jail for thirty months. His conviction was recently affirmed by the
Court of Criminal Appeals. Because of the length of time he has been
in jail and because he has apparently reformed and will make a good
citizen, you ask whether a district judge has authority to reduce his
sentence.
.
It is our opinion that the court has no jurisdiction, except for the
app:!lcation of Article 42. 03. Vernon’s Texas Code of Criminal Proced-
ure. l,o enter any order affecting the judgment and sentence. State v.
Kiein, 224 S. W,2d 250, (Tex. Crim. 1949). Therefore, the district
judge may not reduce the overal, sentence to a term less than fourteen
years.
On the ot,her hand, Article 42. 03 ores provide that the judge of the
court m which t,he defendant was convict,ed may, within his discretion,
give the defendant credit for time spent m jail.
In ,_-
Ex parte Freeman, 486 S. W, 2d 556( Tex. Grim. 1972), the court
helo that, under Article 42.03, the trial judge had complete discretion
as to credii on a sentence for time spent in jail but that. pursuant to
N. Carolina v. Pearce, 395 U. 5711, 23 L. Ed. 2d 656, 89 S, Ct. 2072
(1969), and Robinson v. Beto, 426 F. 2d 797 (5th Cir. 1970), the defend-
ant is constitutionally entitled to credit for the time from conviction
until determination of his appeal.
p* 97
Honorable John Henry Tatum, page 2 (H-21)
To answer your question specifically, we would state that the
district judge has no authority to reduce the defendant’s sentence
from fourteen years to some lesser term. He does have discretion,
however, to grant credit for pre-trial time ,spent in jail between
arrest and final conviction. and must give credit for time spent in
jail awaiting determination of apx
SUMMARY
After appeal to the Court of Criminal Appeals and
affirmation by that court, the trial court lacks juris-
diction to reduce a sentence but does have jurisdiction
and discretion to grant credit for time spent in jail
prior to final conviction and must give credit for time
spent in jail pending appeal.
Very truly yours,
Attorney General of Texas
. APPl$IVED:
DAV:D M. KE-NDALL.
Opinion Committee
p. 98