Untitled Texas Attorney General Opinion ( 1945 )

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