                 OFFICE   OF THE   ATTORNEY     GENERAL    OF    TEX

                                       AUSTIN



GEIALO C. MANN                                                  i”
 li-”   ..“WL                                                    dprU   16)*   Is38




        lionorahle 0. J. 6. Ellingsm
        General iianapr,
        T8xas Prison System
        ttuntsville, Texas

        Dear SIX'S




                                                               8Md8f-
                                                          ~fopsldfslrurrl
                                                           dsff8rtmii fmm       that




         &2#3rati0n to


                                                have s rul%ng f'mm 98~


                                       rrisoa, our #aBsS?T* was ema-
                                        n system an Borcnber 36,
                                    hillslnl
                                           f.wmty* lih8r8Be h8a
                                    itttW#WrretrOf~~8Ud
                                    ft 8V8r vwty   D8lfzw8# 8aase #
                                    and #9'73,end assssssd three-
                                   two caas& and twb-year tmm
                   in two oasa%    all aentem88s made oozmurmmk

                          *Later a five-y85x ausgended Benferrse,
                   which had been amesfmd against M8rrWm       by
                    t&e District c?ow-t of Elutehinson Caauty DsbWiP
                    w, ss*, one aa8e et burglary tmd8r am86 #%dur
                   sas lwvacml* The f%nal sentems tmd8r 8euse
                   $926  eontatie the iallsaing elsusm
Bona 00 J. So Dlllugson, 4Wu   l3g, '1938,Page m



               "It further appearing that there has
         been one year aerved on said sentence up to
         this day; and the said Bill Morrison shall
         be tonfined in said penitentiary for not
         less than four yeaxs, being the unexpired
         portion of the ori&m.l   judDmnt and sentence
         herelu rendered..., *

               Whereas, Article 773, Code of 3rlrimi.ua.l
         Procedure states that suspended sentcnoee,
         when revokf3d and made final, shall be aunula-
         tire sentences.

               "2   Denial Ollvares, our #303pl, was
         oommitted to the Prison Bystan on Harsh 16,
         1930, from Hidalgo County There he had been
         convicted in one oase of burglary, cause
         #a231, and assessed a firs-year term.

               *Also, a five-year suspended sentence;
         which had been aesesssd against Oliraree by
         the Distriot Court of Hldalgo County, Ootober
         7, 1938, one oafae of night-time burglary, un-
         der cause #62lD, was revoked. The final sen-
         tence under oeuse #62lD, contains the follor-
         ing clause:

               "*It is therefore ooneidered, ordered, ad-
         Judged and deareed by the oourt-that the sentenae
         heretofore Imposed upon the eald Daniel Dlivares
         In this oause become operative, and the suspen-
         slon thereof be vacated, and such eentenoe shall
         run oonourrent~y-with the said sentence in cause
         #a201 in this court.*

               aSlnoe eaoh of these subjeote have sus-
         pended sentencee running conourrently with the
         other terms, and ain- Bill Horrieon*s sus-
         pended sentence was also dated back one year,
         we would like to lmow whether these Gases
         should be so entered upon our reoords?*

          We know of no reason why the oases inquired about in
 your letter should not be entered Upon the reoords of the Tex-
 a~ Prison System, In aooordanoe with the terms and provisions
 of the judgpient of sentenoe pronounced by the court in eaoh
 case, unless the same should be void because not being lounu-
 latire* with the punishment of the.subsequent ConriotSon, as
 required by Article 773, Code of Criminal Prooedure, rather
 than *concurrent*.
non. 0.   5.-s.   w3ling11on, AprU l9, 1930, Page 3




          Xt is true Artiole 773, Code of Crdmdnal Proaed-
urg   provides for the revooetlon of a suspended sentence
and states that when a sentenoe 1s revoked *the court
shall pronounoe sentence upon fh4 original  judpsent of
oonvlction and shall cumulate the punishment of the first
rith the punlaikeent of any subsequent conviction or con-
riotIons.@    The failure, however, on the pert of the
oourt to comply with the terms and pro~islone of this
statutqes was done in the cases in questlon,and sen-
tence the defendants to the penitentiary for a tew of
year8 different from that preeoribed by statute does not
render the ludgplentof sentence void. The judgnente of
sentence in question may have been erroneous in this re-
speot, but It doe8 not follow they were, for that reason,
void.

         The Supreme Court of Texae In the oaee of Clay-
ton Y. ihart, 88 Tex. 5OS, 32 8. IL 077, In an opinion by
Justloe Dennan, statedr

                suhen 8 court of general $Irlsdl~~tlon#
           In the exerolse of Its ordinary judicial
           functions, renders a fudgnent In a cause
           ln rhioh it has jurisdiotion over the per-
           son of the defendant and the subjeat met-
           ter of the oontroversy, such judgment Is
           never void, no matter how erroneous it may
           appear, from the face of the records or
           otherwise, to b&*

         f(ad the aourt in earth of the oases In question com-
plied with Article 773, Code of Criminal Prooedure, and OIIIIU-
leted the punishment of the first oonvlctlon with that of
the seoond, It would heve added greatly to the punishment of
eeoh conviction.    Therefore, we think the effeot of the eot-
ion of the courts In making the sentenoe in the first comict-
Ion run oonourrent with the sentence in the subsequent con-
viction was to sentence eaah of the said conoiote for a short-
er term and give each of them less punishment than the law
presoribes.

         In this oonneotlon we quote the rule as stated in
Corpus Juris, Vol. 33, page 621

                 "A sentenoe for a shorter term or less
            punishment than the law preeorlboe for the
            offense for whioh the prisoner 88s convioted
            is erroneous but not po%d, and affords no
            grounds for discharge on habeas oorpus,s
IIon.0. J. s. )3lliugson,April Is, l939, Page 4



        We have been uuable to find any case deoided by
our Texas dourts in which judeent of sentenoe has been
questioned beaause of being insufflolent. Howover, we
do find nuaerous cases decided by courts of other
states in which the rule as above stated in Corpus
Juris has been folloredt
        You are therefore advised that the judgment of
sentence in the two oases mentioned in your letter are
not void and eaoh case should be entered upon the records
of the Texas Prison System in strict eocordance with the
sentence pronounced by the court in each case.

                                  Your6 very truly
                              ATTORBEP GEWERAL OFTEXAS



                                          !l'om
                                              D. Rowell
                                              Assistant
