-   .




                          THEATTORNEYGENERAL
                                   OF TEXAS
                                      AUSTIN   ~.TEXAS

       WILL     WILSON
    *FrcmzNEY      GENERAL               August 16, 1960


        Mrlr.
            0. B. Ellis, Director                        opinionIJO.ww-903
        Department of Corrections
        Huntsville, Texas                                Re:   Whether time on a state
                                                               sentence, after a condi-
                                                               tional pardon revocation,
                                                               begins to run again when
                                                               prisoner is taken in custody
                                                               by a county sheriff, but then
                                                               is delivered to Federal au-
                                                               thorities, tried, convicted,
        Dear Mr. Ellis:                                        and sent to Federal Prison.

              Your request for an opinion has been received and carefully considered by
        this Department. We quote your letter, in part, as follows:

                  "Raymond Carl Brown was convicted of robbery in Dallas County,
             Texas, on December 20, 1950, and received a 20-year sentence to begin
             December 27, 1949. He was received at Huntsville on January 25, 1951.
             On February 13, 1952, by official proclamation, his sentence was re-
             duced to 10 years. On August 18, 1952, he was granted a conditional
             pardon and was released from the Texas Department of Corrections on
             August 23, 1952. At that time he had served 2 years, 7 months and
             26 days and was entitled to commutation time of 1 year, 7 months and
             8 days making the total credit 4 years, 4 months and 4 days. On Sep-
             tember 2, 1954, his conditional pardon was revoked. At that time he
             was in the custody of the Sheriff of Williamson County, Texas. We
             advised the Sheriff that he was wanted as a conditional pardon viola-
             tor on September 2, 1954. Before we could send for the prisoner the
             Sheriff of Williamson County turned him over to a Texas Ranger who in
             turn delivered the prisoner to the Federal authorities at Austin. Sub-
             sequently Brown was convicted in the Federal courts and given a sentence,
             the exact terms of which we are not advised, and is presently serving
             time at Leavenworth, Kansas. We respectfully request your opinion on the
             following:

                  "First: Brown was in the custody of the Williamson County Sheriff
             at the time his conditional pardon was revoked on September 2, 1954. Did
             time under his state sentence begin running again on September 2, 1954,
Mr. 0. B. Ellis, Page 2    (W-903)
      even though he was delivered into the hands of the Federal authori-
      ties on September 13, 1954, was subsequently convicted in the Federal
      courts and is presently serving time in a Federal prison?

           "Second: If Brown is given credit on a calendar basis for time
      served since September 2, 1954, he will have completed his state sen-
      tence on kiay28, 1960. Brown served "continuously" for 2 years, 7
      months and 26 days before he was released on a conditional pardon.
      At that time Brown was paid the $5.00 and transportation to Dallas as
      required by law. If Brown is entitled to credit on his sentence from
      September 2, 1954, to May 28, 1960, he will have served "continuously"
      for the additional time of 5 years, 11 months and 26 days, Since the
      sentence was not served "continuously" but was interrupted by a condi-
      tional pardon and a violation of that pardon, is Brown entitled to pay
      under Article 616621,as amended, and, if so, in what amount?

      In answering your first question, we are of the opinion that time under the
state sentence of Raymond Carl Brown began running again on September 2, 1954,
when in custody of the Sheriff of Williamson County, and continued to run until
September 13, 1954, when he was delivered to the Federal authorities in Austin.
It is also our opinion that his time under the state sentence ceased to run on
September 13, 1954, and does not begin again during his period of incarceration
in Federal Prison.

      In Texas a term of imprisonment dates from the time sentence is pronounced.
In most jurisdictions, including Texas, a convict is credited with all time spent
in jail in connection with the offense for which he has been sentenced. The fact
that the state penal authorities did not send for the prisoner during the period
from September 2, 1954, to September 13, 1954, should not prohibit this time from
being counted on his state sentence. "The least to which a prisoner is entitled
is the execution of the sentence of the court to whose judgment he is duly subject."
Smith v. Swope, Warden, 91 Fed. 2d 260.

      It is our opinion, however, that Brown should not be given credit on his
state sentence for the time presently being served in Federal Prison. The weight
of authority in Texas upholding this contention is embodied in five cases.

      In the case of Ex parte Spears, 235 S.W.2d 917, the Court of Criminal Appeals,
speaking through Judge Beauchamp, overruled an earlier decision in the case of Ex
parte Baird, 154 Tex.Cr.R. 109, 225 S.W.2d 845. In the Spears case, Spears had
been under state sentence and released on six months reprieve, which expired. Before
the State could get him back, Spears was convicted in Federal Court and served a
Federal sentence. It was held there that no credit should be given on the state
sentence for the federal time served.
Mr. 0. B. Ellis, Page 3    (ww-903)
      In expressly overruling the Baird case, the court stated in part:

           "It‘is-noted in this Court's opinion that the Federal Judge
      in passing sentence, made no reference to his state conviction.
      He could have made an order cumulating the Federal sentence, de-
      livered him to the Texas authorities until he had served his sen-
      tence in this state, and then committed him to Federal Prison. He
      did not do that, but sent him direct to the Federal Penitentiary.
      No order which the Federal Court made, or could have made, would
      have any effect on an existing sentence from a Texas Court.
      {E$lphasisadded) Furthermore, we may observe that even if Baird
      had been tried on ,anothercharge in a State court, that court
      could make no order which would affect the existing sentence
      which he was serving.' The trial judge in passing sentence on
      one already under sentence in another court may, by proper order,
      cumulate the sentence which he imposes with the existing one, or
      he may let his sentence runconcurrently, but nothing he may do
      can affect the existing sentence imposed by another court. This,
      it seems, should be without dispute. . .'. It is sufficient to
      say that the judgment which the Federal Court entered had no affect
      whatsoever on an existing State judgment imposing sentence on Baird
      and we were in error in so holding. It becomes appropriate, in
      disposing of the question now before us, to say~~thatour holding in
      the Baird case is overruled and so are each and every case in which
      the Court has followed the Baird case."

      In the-case of Ex parte Sanderson, 153 Tex.Cr.R. 226, 212 S.W.2d~639, the Court
of Criminal Appeals ruled that no credit should be given on a state,sentence for
federal time served after revocation of a conditional pardon. The Defendant was
convicted of a federal offense while on conditional pardon from a state conviction.

      In Ex parte House, 276 S.W.2d 846, a 1955 case before the Court of Criminal
Appeals, a suspended state sentence was revoked and Defendant was given a two-year
sentence in the federal penitentiary after conviction of a federal felony. While
serving the two-year federal sentence Defendant was given an additional five-year
federal sentence. The court, through Commissioner Dice, held that the Defendant
was not entitled to 'crediton the three-year state sentence for the time he served
in the federal penitentiary in discharge of the five-year sentence assessed after
the suspended sentence had been revoked by the state court. This should answer
any contention that the matter of whether the revocation comes before or after the
federal conviction is a critical one. In the House case, the court state in part:
                                 _..,
          "It is the rule in this state that a prisoner who, after conviction
     and while serving a sentence in the penitentiary, is convicted of a federal
     offense and serves the sentence imposed on him, is not entitled to credit
     on the State sentence for the time served in the federal prison in dis-
     charge of the federal sentence. The same rule has been applied to the time
Mr. 0. B. Ellis, Page 4     (ww-903)
      served under a conviction in ,a federal court during the time a
      state prisoner's conditional pardon ,hasbeen revoked." Lciting
      the Sanderson case1 (Emphasis added)

       fin Ex parte Cox, 187 S.W.2d 985, the Court of Criminal Appeals held that the
rule as to concurrent sentences had no application there and the time served in the
 federal penitentiary was not credited on a prior state sentence. The prisoner,
after affirmance of state convictions and sentences, was thereafter sentenced to
federal prison. Upon his release from the federal penitentiary, the court held that
he was properly delivered into the custody of the sheriff and delivered to the State
penitentiary to serve his state sentence. The court distinguished the case of Ex
parte Lawson, 98 Tex.Cr.R. 544, 266 S.W. 1101, a Court of Criminal Appeals case.
There the defendant was convicted of the federal charge first, and was serving the
federal sentence when convicted in thestate court. In that case, the court held
ihat the general rule applied and the sentences ran concurrently since the state
court, with knowledge of the federal sentence, did not make the state sentences
cumulative 0f.ths.tin the Federal case.

      The very recent case of Ex parte Johnson, 311 S.W.2d 861, affirms this posi-
tion. Although not required to pass on this precise point for its decision there,
Judge Woodley of the Texas Court of Criminal Appeals stated in part in a concurring
opinion:

           "As stated in Judge Belcher's opinion, if all such time and
      credits should be allowed on the Texas sente#ee, relator would have
      further time to serve and is not therefore illegally restrained of
      his liberty. Under the authorities cited by Judge Belcher, this
      Court's jurisdiction would not therefore be invoked and any holding
      this Court might make other than to deny relator's prayer for release
      could not be but dicta. In other words, a declaration as to what
      credits~~shouldbe allowed on the sentence of a prisoner which, if
      allowed, would not entitle him to release, would be but a declara-
      tory judgment.

           "Notwithstanding the rules stated, this Court is not precluded
      from declaring from what it may be worth, that the prison authorities
      should consider a convict's sentence to have certain credits claimed
      by him in ~a habeas corpus proceeding.
           II. . .

           "As I understand the prior decisions of this Court and the record
      made before the district judge, I express the view that the relator is
      not entitled to any of the credits claimed.

           "The sentence has been credited with time served prior to relator's
      release on conditional pardon. The conditional pardon granted and
      accepted was conditional and provided that time relator was at large
Mr. 0. B. Ellis, Page 5     (w-903 1

      under it should not, in the event it was revoked, be credited or
      considered.



           "The authorities dealing with cases where the trial judge in the
      subsequent prosecution failed to cumulate the sentence are not.appli-
      cable.

          "Under the holdings of this Courtin Ex parte Spears, 154 Tex.Cr.
     R. 112, 235 S.W.2d 917, wherein Ex parte Baird, 154 Tex.Cr.R. 109,
     225 S.W.2d 845, was specifically overruled, (and citing others) rela-
     tor is not entitled to credit on his Texas sentence for the time he
     was required to serve on the Federal sentence before he could be re-
     turned to complete his Texas sentence." (Emphasis added)

      Under the authorities mentioned, you are advised that time under the State
sentence of Raymond Carl Brown began to run again only for the period from Septem-
ber 2, 1954 to September 13, 1954 while he was in custody of the Williamson County
Sheriff. You are also advised that time under the State sentence has not run while
Brown has been in federal custody serving his sentence in the federal penitentiary.

      In view of the answer to the first question it is not necessary to answer your
second question concerning the interpretation of Article 616621, Revised Civil
Statutes.

                                  SUMMARY

          Time on a state sentence, after revocation of a conditional
     pardon, begins to run again only for the period of time a prisoner
     is in the custody of State authorities, but does not run after the
     prisoner is delivered to Federal authorities, tried, convicted, and
     serves a Federal sentence. The prisoner is not entitled to credit
     on his Texas sentence for the time he was required to serve on the
     Federal sentence before he could be returned to complete his state
     sentence.

                                               Yours very truly,

                                               WILL WILSON
                                               ATiVREEYGEBERALOFTEXAS


                                               By.&L*(/     RU
                                                   GLEXNR. BROWN
                                                   Assistant Attorney General
MI-. 0. B. Ellis, Page 6   m-903)
APPROVED:

OPINION COMhl!TEE

MORGAN NESBITP, CDJRMAN

Virgil Pulliam
Ben Harrison
Joe Osborn
Bob Shannon

REVIEWED FOR THE ATTORNFl GENERAL

BY:   Leonard Passmore
