THE .i%TTORNEY GENERAL
OF TEXAS
AUSTIN ai. T-n
cmovlmSExlmm
HonorableOtto P. Moore
CountyAttorney
Coloradocounty
C~lumbua,Texas
opinionHo. 0-6301
Be: Oau CountyJudge during tern
in whioh he renderedjudme&
of oonviotion,set eme -Me
after defendanthae pale fins
and costs; and, if 80, what is
legal dispositionof ma me
and coats?
Dear Sir:
We have reoeivedyour recent ocmnunioation,in which you aulznit
for our detennlnationthe followingmtterr
On Anguet l.3,1945, the Comty Judge of ColoradoCounty,Tesae,
aooepteda plea of guilty to an informationoharginga violationof the
liquor laws filed In the oounty oourt, and renderedjudaent again&
defendticfor a fine of $100.00and cotitaof court. Bo motion wae'.made
for a new trial,tierwae an appeal taken, and immrediatelyafter the
renditionof said judgment,the defendantpaid such fine and ooste to the
county clerk. The followingday, on Auguet 14, 1945, the county judge,
a8 ahown by his docket entry,renderedan order aet,tlngsaid judgment
aeide. Tne queetioneinvolvedare;
1. CM the county judge legallyset aside e Judgment
such 88 was given in this case when the defendant~pleade
guilty and had alreadypaid his fine and receiveda re-
oelpt for the same by t&e clerk of the court?
2. What iB the 18~1dikQO63itiOll Of the fine and OOBts
aa shown by the facta & this oaee?
We assume that all tie acts in questionwourred during the
eeme tern of county court., and that the jn@ent renderedon August l3,
1945, as aforesaid,wae duly entered in the minutes and approvedby the
county judgebefore the expirationof said term of court. Fm the faote
etatedwe oannot assume that the jud@nentof Auguet 14, 1945,wae at the
fn&anoe or on motion of the defendant.
HonorableOtto P. Moore, Page 2 (O-6801)
The generalrule is that during the tam of the oourtatwhlah
any jud-t hae been entered,or motion aoted upon, the court etlllhar
power mar all of ltr prooeedlngnand may oorreotand reformor aet ulde
any jumt or aotlon of the oourt had during the term. Sea Pens Y:
State (Grim. App.), 24 6. W. (2) 396; Bundiok Y. State, 59 arim. Rep. 9,
127 8. W. 543; Eumphrlerv. State (Grim.App.), 69 8. W. 527; Metoalf v.
State, 21Crlm. App. 174, 17 9. W. 142.
However, in a oriminaloa88 if the aooueedhae sufferedacme
puniehmentunder the jud@mnt, the court la powerlessto &sage it in
any substantialrespect,unless at the instanceor on motion of defendant.
See Griaheuv. State, 19 Crti. App. 504; Brezelav. State, 92 Grim. Rep.
479, 244 8. W. 529; and Turner v. State, 116 Cr. R. 154.
Therefore,givingapplicationto the principle8oontrolling,
we are con&rained to hold that, unless at the -tan08 or on motion of
defendaat,It wae beyond the power of the uounty judg8 to eet aeide the
originaljudment renderedon August l.3,1945. Such being the oaee, the
order of A&et 14, 1945, attemptingto set aside the originaljudepnaat,
was a nullity and oannnotbe enfprced,but the originaljudment of con-
viction is legal and atanda 88 ekeouted,
In view of our answer to your questionHo. 1, it is mneoesaery
to anewer queetlonBo. 2.
Youm very truly,
By /a/ Robert L. Iattimore,Jr.
Robert L. IattImore,Jr.
Assietmt
RLTJgb-da
APPROVEDOCT 22, 1945 APmovED 0PlmoI!
ColMIT%BBYGWBCEAlREIAEl
/a/Carlos C. Ashley
FIRSTASSISTAlVTATlQRREYGEiEBAL