Untitled Texas Attorney General Opinion ( 1972 )

E ~%TTORB~EP GENERAL
OF%%CXAS
February 25, 19 2
:
Honorable W. G. Woods, Jr. Opinion No. M-1071
District Attorney
Liberty County Re: Entry of Judgment in
P. 0. BOX 431 Criminal Cases
Liberty, Texas 77575
Dear Mr. Woods:
This is in response to your recent inquiry in which you
posed the following two questions:
1. Does the law require separate forms or
drafts of judgments and sentences to be prepared
for approval and signature of the trial court in
felony cases separate and apart from the entry of
the court's pronouncement of judgments and sentences
in the minutes and the court's signature certifying
to the minutes at the end of the term?
2. If your answer to my first question is
affirmative, then whose duty is it to prepare
such drafts of judgments and sentences for the
court's approval and signature?
Article 37.12, Texas Code of Criminal Procedure, provides:
"On each verdict of acquittal or conviction, the
proper judgment shall be entered immediately. . ."
Article 42.01, Texas Code of Criminal Procedure, defines
a judgmemt as "- D o the declaration of the Court entered of
record. . *"
Article 42.02, Texas Code of Criminal Procedure, defines
sentence as follows:
"A 'sentence' is the order of the court in a felony
or misdemeanor case made in the presence of the defendant,
except in misdemeanor cases where the maximum possible
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Honorable W. G. Woods, Jr., page 2 (M-1071)
punishment is by fine only, and entered of record, pro-
nouncing the judgment, and ordering the same to be
carried into execution in the manner prescribed by law."
Unlike the procedure in civil cases contained in Rules
300 through 314, Texas Rules of Civil Procedure, the Code of
Criminal Procedure is silent concerning the necessity of a
separate written judgment and sentence in criminal cases.
Review of the decisions of the Court of Criminal Appeals also
reveals nothing determinate of whether the judgment of the
Court may be announced orally and subsequently "entered" in
the written record or must be first reduced to writing and
signed by the Judse and then entered into the record. In
Barber v; State, 374 S.W.2d 246, (Tex.Crim. 1964), the Court
stated:
"While the action of the Clerk of the County
Court in waiting as long as a year before performing
the ministerial act of entering the judgment into
the minutes of the Court is not to be condoned, we
cannot agree that reversible error has been committed.
The better practice seems to be to enter the judgment
contemporaneously with its pronouncement, but delay
in making the entry will not invalidate the judgment
where no injury is shown to have resulted to the
appellant." (Emphasis added.)
Although this case makes it clear that the actual entry
of the judgment in the minutes of the Court is an obligatory
duty of the Clerk, it apparently remains discretionary with
the Court whether or not he should direct the clerk to also
prepare separate written judgments and sentences to be filed
among the papers in each cause. We find no authority for
requiring counsel for the State (or the Defendant) to prepare
such written documents.
SUMMARY
In criminal cases it is discretionary with
the Court whether judgments and sentences shall
be announced orally and subsequently entered by
the clerk or prepared in writing by the clerk
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I
,
Honorable W. G. Woods, Jr., page 3 (M-1071)
and signed before being entered in the minutes.
eneral of Texas
Prepared by Howard M. Fender
Assistant Attorney General
APPROvED:
OPINION COMMITTEES
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bob Lattimore
Barton Boling
Gilbert Pena
Dunklin Sullivan
SAMUEL D. BCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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