dissenting.
I cannot agree that the authority given a trial judge by Art. 42.03, Sec. 5, V.A.C.C.P., vests only in the judge who pronounces sentence. The statute provides:
“Where jail time has been awarded, the trial judge may, when in his discretion the ends of justice would best be served, sentence the defendant to serve his sentence during his off-work hours, or on *478week-ends. When such a sentence is permitted by the trial judge it must be served on consecutive days or consecutive week-ends. The trial judge may require bail of the defendant to insure the faithful performance of the sentence. The trial judge may attach conditions regarding the employment, travel, and other conduct of the defendant during the performance of such a sentence.” (Emphasis added.)
Is justice not to be served during the performance of a sentence? The majority’s interpretation of Art. 42.03, Sec. 5, is not mandated by the language of the statute and is not consistent with the intent and purposes of this provision. It is reasonable to assume that the conditions affecting release of a jail prisoner for work purposes might change while a defendant is serving his sentence. Yet the majority’s holding prohibits the trial court from altering or modifying the work release order to accommodate any changes. Thus a defendant who loses a job while serving out his sentence could continue to leave the county jail during the work hours specified in the sentence and the trial court would be without authority to alter the order. Also, any “conditions regarding the employment, travel and other conduct of the defendant” which a trial judge may have attached to the sentence could not be modified after pronouncement of sentence. Nor could a trial judge impose additional conditions regarding a defendant’s conduct since “this provision may be invoked only at the time of sentencing”. The majority’s position is unreasonable and contrary to the plain intent of Art. 42.03, Sec. 5, to vest a trial court with broad discretion concerning work releases of jail prisoners.
The majority further concludes that the June 13 order thwarted the mandate of this Court and that a writ of mandamus is necessary to protect our jurisdiction; however, the majority does not explain in what way our mandate has been thwarted or our jurisdiction threatened.
The majority fails to address the respondent’s contention that the June 13 order did not affect the finality of the mandate of this Court because the order did not reduce the sentence imposed and did not alter the length of the sentence. Botello is still serving one year in jail and must still pay a $2,000.00 fine. The order which relator challenges describes the quality of Botello’s confinement but does not alter the length of confinement. Thus the sentence entered of record in cause number 32975 in the 212th District Court of Galveston County is being carried out, and the respondent performed a ministerial act in entering the June 13 order.
“[Tjhis Court may issue writs of mandamus to enforce the court’s appellate jurisdiction or its original jurisdiction to issue writs of habeas corpus, but this is a limited use of such writ, for the Court of Criminal Appeals has no general power to issue writs of mandamus.” Ex parte Giles, 502 S.W.2d 774, 778.
I do not agree that respondent has interfered with our appellate jurisdiction and that the issuance of a writ of mandamus is necessary.