Untitled Texas Attorney General Opinion ( 1964 )

Dr. Ge.orgeBeto Opinion No. C-309 Director Department of Corrections Re: Whether the order of Crimln- Huntsville,Texas al District Court No. 4 of Harris County crediting the sentence of an Inmate of the Texas Department of Correc- tions under Article 768, C. Dear Dr. Beto: C.P. Is a valid order. Your letter of July 30, 1964, requestingan opinion by this office reads: "In the Criminal District Court No. 4 of Harris County, Texas, at the November 1963 Term, on November 18, 1963, in Cause No. 106979, Lawrence P. Schmidebergwas convicted of the offense of theft and his punishment was assessed at three years. On the same day, he was sentenced for not less than two nor more than three years and gave notice of appeal, perfected his appeal, and appealed his case to the Court of Criminal Appeals,, The Court of Criminal Appeals af- firmed the conviction and the date of the Mandate is May 1, 1964. On May~25, 1964, Schmldebergwas received at the Texas Depart- ment of Corrections,on commitmentpapers Is- sued in the above cause. 'On June 17, lgf$, we received certified copy of an order entered by Judge A. PI. Krichamer on June 11, 1964, ordering that the above named DefendantAbe given credit on his sentence of the time from August 18, 1963, to May 1, 1964, for time spent in jail pending appeal. II . e . . "In view of the fact that Article 768 C. C.P. authorizes the Court to give the De- fendant credft for time spent fn jail pending -1474- Dr. George Beto, page 2 (C-309) appealf and the'fact that the Inmate was re- ceived by the Texas Department of Corrections on May 25, 1964, is the order of Judge Krlch- amer under date June 11, 1964, a valid credit on the sentence of the inmate?" The order of Judge A. H. Krichamer reads: "On this the 11th day of June, A.D. 1964, it being called to the attention of the court that the defendant in the above styled cause was not given credit for the time he had re- mained in jail pending appeal herein to the Court of Criminal Appeals of the State of Texas, August 18, 1963, to May 1, 1964, which has been the intention of this Court: "It is therefore ordered, adjudged, and decreed by the Court that the sentence in Cause 106979, The State of Texas vs. Lawrence P. Schmldebeag,begin as of August 18, 1963. "The Clerk is here ordered to attach this order to the original sentence and forward a certified copy to the authoritiesof the Texas Department of Correctionsto be made a part of the commitment now in their hands." Article 768 of Vernon's Code of Criminal Procedure reads: "If a new trial is not granted, nor judg- ment arrested in felony cases, the sentence shall be pronounced In the presence of the de- fendant at any time after the expirationof the time allowed for making the motion for a new trial or the motion In arrest of judgment; provided that in all criminal cases the judge of the court in which defendant was convicted may,wlthin hls discretion,give the defendant credit on his sentence for the time, orany %he trail court; ana provided further, that 'inall cases where the defendant has been tried for any violatlon,ofthe'laws of the State of Texas, and has bden convicted and -%475- Dr. George Beto, page 3 (C-309) 3ions of &is Act shall,not ap- ply after convictionana sentence In felony cases in which bond or recognizanceIs not permitted by law.” (Emphasisadded) The Honorable Arnold H. Krichamer, Judge, Criminal District Court No. 4 of Harris County, Texas, had advised us by letter that it was the intent of the Judge to grant Defendant credit on his sentence for jail time pending trial and sentence from August 1.8,1963, to November 18, 1963, and for ail time pending appeal from November 18, 1963, to May 1, 196i . It Is within the discretion of the trial judge in a proper case to: (1) Give the defendant credit on his sentence for time spent~in jail from the time of his arrest and confinement until hia sentence, and further (2) Subtract from the original sentence the time lain in jail pending appeal. The statute is specific in re- quiring the trial judge to "again call said defendant before him",and then “re-sentence the defendant"'and at that time sub- tract from the orl.ginalsentence time lain in jail pending ap- peal. The Judge did not specificallyfollow the statute. However, he may do so at this late date. Under Article 768 of Vernonrs Code of Criminal Pro- cedure, it Is within the discretion of the trial judge to give the defendant credit on his sentence,forthe time spent in jail, both before and after trial. It is our opinion that If the Dr. George Beto, page 4 (C-309) trial judge will recall the defendant before him and re-sen- tence him he ?nay,in his discretion,provide -thereinthat the defendant be given ,credltfor time spent in jail. The Order cif.'Crlmlnal District Court No. 4 of Harris County, Texas, crediting the sentence of an Inmate of the Texas De artment of Correctionsunder Article 76g,~C.C.P~.,is not a valid order. How- ever, the judge may recall the defendant and re-sentencehim and therein nlve the defendant credit on his sentence-forthe time he spent in jail. Very truly yours, WAGGONER CARR Attorney General of Texas VFr/dt/br APPROVED: OPINION COM&UT'PEE W. V. Geppert, ChalIlnan Robert Smith mdy Coleman Roy Johnson Bill Allen APPROVED FORTHE ATTORNEX GENERAL By: Roger Tyler - 1477-