OFFViE OF THE ATTORNEY GENERAL OF +WS
AUSTIN
Honorable 0. 3. S. EllIni33on.
General Umager, !&mm Prison 8ystem
Huntsville, Texas .~
~._.
‘Dear Sirr OptiLoti No. O-3720
~. Rer Cumulative or obncurrent
sentence c’should Jack
Sullivan~s sentence read
37 gears or 20 years? .-
‘Fhia letter is In &ply to r&r 0plnioiI request 6;
recent date from whloh we quotx the follovlngr
‘bar records reveal that on January 25, ’1 1
~ig33, in wf30 x0. 2239, in the District Court
of Hale County, Sack Sul2iva1xvaa oonvioted of
the offense of Robbery with Firearms ,~ and on
February 15 was sentenced
bg said oourt to
eerve not, less than five nor more t-han tventy
years in the penitentiary. Theretiter, on
March 21, 1933, in Cause ITo. 1717 in the Dls-
trlct Court OS Lubbock County, Sullivan wa?
oonvlcted of the offense of RobberJi with
Firearms, and was sentenced by said court .’
to serve not less i5han five nor more than
seventeen years In the penitentiary, and that
this sentence Is to be cumulative of a~ other .
sent.ence that the defendant has or may have ln
themfuture, during the tine of this ssntenCer
“8ull~~van appealed this platter ionvLation
to the Court of Criminal Appeals and F?date
was issued Ootober 27, 1933, upholdiqg tti’oon-
viction but reforming his sentence to show ‘Not
lose than five nor more than seventeen years’.
‘In viev Of the convictions and sentences
outlined above, ve are inclined to believe.
Jack Sullivan hao a total sentence of 37 gears
. .
. .
.-
520
I[joorEb2ii 0;. j;. &. &Illngson,~ Page. 2
~$rison~
or 20 yeaxe as contended by him. ”
You also enoloeed copies of the eentenoes.from Hale-
a Lubbock Counties, confirming the statement made in your
letter, copied above.. In tine Lubbock County sentence appeara
the fol2oving order*. ~1.
~
‘This a’entenoe~ la to be cumu2at~ve~ to
any other sentence that the defendant has
or may have in the Suture,.durIng the time .
0f'this.sentence.I'
We find that both cases hereti wSerred.to were'ap--
pealM by Su22lva.n to the Court of Crlmlnal Appeals, ‘the Hale
County conviction being af3Xrmed 3.n an opinion printed In 61 S..
Y. (2d) 1118 vhile the Lubbock County ease is reported ia I.24
Tex. Cr. .R. 1/35,, 63 S..W.. (26) 704. FPom ‘se court ‘8. 0plllLon
in the latter oase ve quote*
'we Slnd in the reaord no statement of
facts hop oomplaint 0r any matter of prooedum,.
except that in his brief appallant vigorously.
urges that the .court vas in error in a part.
of hle senteke, pointed out in the brief.. Wu~
are In accord vlth appellant’s contention .that.
aaid part of the sentence was erroneous, but
gonorable 0. Y, 8. ElUllg~~, Page 3
I : ‘~
“The judgment will be affilned with the
sentence reformed as above statedi” (Emphasis
ours.)
As vi11 be noted by readin@,the underlined laUgU&ge,
tti effect of the opinion Is to vitiate and rendor wholly in-
effective the attempt of the trial court to .make the Lubbock
&ntp sentence cumulative with any other, including, of COLWBB,
Ihe iirde Cm&y Sentence. Befng void, the quoted clause must be
rzgletely disregarded, and the sentence from Lubbock County
r:tia as though no mention was made therein of w other con-
rmiona. And, St is well settled that where the trial court
CMI not order ln Lta judpent that two or more sentences in dlf-
:arent prooocutions shall’be cumulative, the terms of lmprlson-
mat run concurrently, See Rx parte Davis, 71 Ter. Cr. R. 538,
IA 3’. Ii. 459.
In view of the above, we must respeotfully advise you’
at the prisoner §ullivac is correct, and your reoords should
k Changed to provide for hla dFscharge after he baa completed
t*+at). ye&r’s imprisonment, with due allowance made for overttie
u commutation earned, if any.
ioure very truly