Untitled Texas Attorney General Opinion ( 1962 )

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W’ILL WILSON
AXTORNEYOENERAI.
December 27, 1962
Mr. George Beto, Director Opinion No. WW-1510
Department of Corrections
Huntsville, Texas Re: The beginning date of pri-
soner's sentence where pri-
soner was denied the right
of bail under Article 815
of the Code of Criminal
Procedure and remained in
jail while his conviction
Dear Mr. Beto: was being affirmed.
In your letter of November 13, 1962, you requested an
opinion of this office on the following question:
"When should the sentence of Carrel Lee
Glen begin and to what credits, if any, is
he entitled for time spent in jail?"
Carrol Lee Glen was convicted in the District Court
of Cherokee County, Texas, on April 29, 1961, for murder and
his punishment assessed at twenty-five years. On June 9,
1961, he was formally sentenced. He appealed and his convic-
tion was affirmed by the Court of Criminal Appeals with the
mandate bearing date of October 5, 1962. Carrol Lee Glen
was received in prison at Huntsville on October 10, 1962.
From the time of the jury verdict on April 29, 1961, to the
date he was transmitted to Huntsville he was held in jail.
The trial court sentenced Carrel Lee Glen on June 9, 1961,
and did not give him credit for jail time from April 29,
1961, to the date of sentence.
Under the provisions of Article 815, Code of Crimi-
nal Procedure, Carrol Lee Glen was not entitled to bail
pending appeal. Ex Parte McBride, 108 Cr.R. 618, 2 S.W.2d
267.
You state in your letter that the inmate is contend-
ing that, under the rule stated by the court in Ex Parte
Neisler, 69 S.W.2d 422 (Tex.Crim. 193&), he is entitled to
credit for time spent in jail after conviction and sentence.
We would point out that the court itself says that the facts
in that case were "meager". It is not clear in that case
whether the court is speaking of time spent in jail after
conviction and sentence pending appeal. We do have a clear
statement covering the situation pending appeal in Powell
.5 ,
Mr. George Beto, Page 2 (ww-1510)
V. State, 63 s.w.2d 712 (Tex.Crim. 1933), where at page 713
the court says:
"When an appeal is taken; the sentence
begins from the date of the mandate of the
appellate court whether the judgment was
affirmed or whether the appeal was dismissed
at the request of the appellant."
The Court of Criminal Appeals of the State of Texas
in Brown v. State, 300 S.W.2c.l
101 (1957), stated that it was
without jurisdiction to entertain or grant a request credit-
ing the appellant with time spent in jail. Under the provi-
sions of Article 768, Vernon's Code of Criminal Procedure,
the trial court alone has jurisdiction to grant such credit,
however, it isspecifically provided in said article that
the provisions of this act shall not apply after conviction
and sentence in felony cases'in which bond or recognizance
is not permitted by law. We, therefore, concur in your
opinion and hold that the inmate's sentence commenced on
October 5, 1962, 'thedate of the mandate of the Court of
Criminal Appeals.
SUMMARY
When an appeal is taken,by the defendant
from a sentence of conviction for a nonbail-
able offense, the sentence begins to run from
the date the appellate court issues its mandate
in the case.
Respectfully,
Assistant Attorn
NVS:nss
W. George Beto, Page 3 (WW-1510)
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Sam R. Wilson
Grady Chandler
Pat Bailey
Vernon Teofan
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore