OFFICE OF THE ATTORNEY ,GENERAL OF TEXAS
AUSTIN
Honorable foha F. l4ey
Dlrtrlct Attorney
81st Judicial Dl8trlct
mrnea city, Texao
Dear Slrr
We ere ln reaelpt
ion from thlr departsieat.
f ollove t
defendant aever
II the tins he was
ut durw the appeal, he never
cogrilzeace, but 8tayed la jail.
the maadate fr0Pl the court of
le, our jud$e, through oversight,
enteace thla defendrat la order to
allow him his time rpeat ln jail, and our judge
now desires to do thla if ame 18 poaelble.
*prom the foregoing, I vould appreciate very
much your op1nlon oa the folio-w:
648
Honorable John F. May, page 2
“(1) C&Q euch defendeat aov be alloved by ’
the district judge the tlmu he has spent la jail
prior to the tlme he entered the penitentiary?
dom3”(2) If 80, 1~ what maaaer 18 this to be
I . . . . (I
After a rather exbAuetlve reach of the 8uthorl-
ties, we find no procedure by vhlch’the eubjeot of your ia-
qulry could be allowed the time spent la jell. Ia so bold-
i~lg, ve U’U not uambdfti of the oral decleloae vherela auac
pro tuaC orders reformlllg filial judgments have beea upheld.
Bovever, it appears that la all of these cares the order
eatered, upon proper application, was for the purpose of mnk-
lag the record *perk the truth rAthOr tbna changing or alter-
lag it. Your question IS uore apt1 aaevered by Judge Oravee
la the c&e5 of Rx parts Patkreoa, TCt. of Crla. App. 1940)
141 S.U. (2d) 319, vherela he llaldt
‘It seems that the basis of ~11 euoh povere
18 that the orddra or mlaotee thereof may be’mde
to speak the truth relative to the oeaurreaaee
about vhlch the mlautee purport to epe8k3 t e
aaa aot be .a correctloa of what should hw?%&
but oaly a correction to amke the mioutee
~*vhat vail aatwlly dose et the time.”
Speaking generally oa the eubjeot of the fl~llty
of judmate, it may be uld that a judgment beoomee fine1
at the ead of the term of court at vhlch it vae readered,
end this, for the reason that the trial GoUrt irsJ mvd 0%
set aside a judgment prior to the alosing of tbe term.’ 12
Teue Jur., SUC. 336, p. 687; Peaa v. State, 24 S.U. (2d)
396.
1~ a felony case where the penalty aeeeeeed ie leee
thea death, the sentence constitutes the flr~l judfWat from
which en appeal may be takeL Vpoa perfectioa of the appeal,
jwledictlo~ of the appellate court attaahee and the trial
court 1s poverlees to sec,
alter 336,
the p.jud6&np end weultlw aed-
eace. 12 Tax. JUr.,
649
Honorable John F. Uey, pege 3
Article 768, V.A.C.C.P., prior to the amend~ata
of’ 1931 end 1941, reed es follows:
“If a new trial fS not granted nor the judg-
ment arrested in e felony ce,ee, the eeatence shell
be pronounced in the presence of the defendant
et lny tUDe after the expiration of the time al-
loved for meking the motion for e new trial or
the motion in arrest oP judgment.”
In 1931 the Forty-eeooad Legislature emended thle
Act giving to the trial judge the diearetIoaery power to al-
10” aredlt for ti.Qe spent la jail prior to eeatence by the
trial court. The Forty-eeveath Legislature In 1941 again
emended this Act end enlarged OR this diecretioaery paver eo
tbst the trial judge mey allow credit for time spent in jell
pending appeal.
This Article aov reeds as follows:
“If a new trial Is not granted, aor judg-
treat arrested in felony c6eee, the eenteace ehell
be pronounced la the presence of the defeadeat et
any time after the expiration of the time ellowed
for making the motion for E new triel or the mo-
tfoa in erreet of judgments provided that in
all criminal cases the judge of the aourt in
vhlch defendent wee convicted, ray within hle
dlsaretloa, give the defendant credit on his
eentence for the time, or eng part thereoi, which
said defendant has apeat in jail in said cause,
from the time of his arrest end confinement until
hi8 sentence by the trial aourt; end provided
further thet in ell ca,eee where the defendant
has been tried for sag violation of the laws of
the State of Texee, and hee been convicted end
has appealed from said judgment end/or eentence
of coavfctfoa, and vhere leid cause bee been ef-
firmed by the Court of Criminal A peels, and aft-
er receipt of the mandate by the 8 lerk of the
trial court, the judge 1s authorlsed to e&Win
cell eeid defendant before him, end if, pendin
appeal, the defendant has not made bond or enter-
ed into recogaleaace and has remlned in jail
Honoreble Sohm F. May, page 4
pending the time of such appeal, said trial judge
lllay then lo hla discretion re-renteace the de-
fendant, and may subtract from the original eent-
ence pronounced upon the defendant, the length
of time the defendant haa lain la jell pending
such appeal; provided, however, that the provl-
alone of this Act shell not apply efter coavlc-
tlon And sentence In felony oases La which boad
or recognIaence Is not permitted by law.”
It is therefore the opinion of this depArtmeat
that the subject of your inquiry could aot be elloved oredit
for the tw he spent in jail prior to the time he entered
the penitentiary. The dealsions are frlrly uniform thAt
vhere, As here, the defendant is committed to the pealten-
tiary to begin execution of his eentenae the trlel court
loses all jurladlctloa. The trial judge havlag falled or
refused to allov credit es provIUed~~yCt~getstute At tha
proper time, could not now do so. . . ., Orlmlael T.w,
section 1589.
Very truly your
ATTORNRX 0RKSlA.LOF Tw
w /L?. M 04
Ii. T . Bob Dow7.
Assistant
HTBD:db
Untitled Texas Attorney General Opinion
Combined Opinion