            THE     ATTORNEY        GENERAL
                        OPTEXAS




Honorable 0,J.S. Ellingson
General Manager’
Texas Prison System
Huntsville, Texas
Dear Sir:                Opinion No, O-2569
                         Re: Mag a district court, under the
                              stated facts, order a credit of
                              jail time from the date of sen-
                              tence to the date of issuance of
                              the mandate followLng an affirm-
                              ante of the convictlonbg the
                              Court of Criminal Appeals?
       Your letter of recent date requesting a legal opinion
from this department states that one Jep Flannery was conaict-
ed of the offense of rape and given a 20 year sentence in the
district court of Van Zandt'Countg and was sentenced on the
29th day of September, 1937; that this defendant was arrested
on the 10th day of May, 1937, and remained In jail.until the
issuance of the mandate on the 27th day of June, 1938, follow-
ing the affLrmance of his conviction by the Courtof Crimrnal
Appeals; that "in a court order dated May 22, 1939, It was
ordered that a credit of jail time dating from the date'of
arrest, May 10, 1937, to June 27, 1938 (the date on which the
mandate was issued) be given on this sentence". We arssume
that this "court ordern was by the district court wheretn the
defendant was convicted.
       In connection with these facts you propound the fol-
lowing questlonz
      "The question involved Is should we credit
   this inmate with jail time as ordered from May 10,
   1937, the date of arrest, to June 27, 1938, the
   date the Mandate was issued; or, should he be
   credited with only the 'timebe remained in jaF1
   until the date of sentence, which would be from
   May 10, 1937 to September 29, 1937?”
       In seeking to give this defendant credit on his sentence
for the time spent in jail from the,date of the sentence to the
date of the Issuance of the mandate, the judge of the dls'crlct
court of Van Zandt County, the court in which the defendant was
Honorable O.J.S. Elllngson, page 2          O-2569


convicted, exceeded the specific grant of authorltg foundsin
Article 768 of the Penal Code of Texas which reads in part a8
follows:
      'I*l * provided, that in all criminal cases
   the judge of the court in which the defendant was
   convicted may, wlthln his discretion, give the de-
   fendant credit on his sentence for the time or any
   part thereof which said defendant has spent ln jail
   in said cause since his arrest and confinement
   until his sentence &The
                         -   trialcourt."   (Emphasis
   ours.)-
       The judge of the court In which a defendant is convlct-
cd is not authorized by the statutes to give credit to a de-
fendant on his sentence for any time spent In jail after his
sentence by the trial court and during the t%me of the pendence
of his appeal to the Court of Criminal Appeals of Texas. It
is recognized, of course, that the power to grant pardons,
parolesor commutations of sentence rests only in the Governor
upon recommendation of the Board of Pardons and Paroles.
       Accordingly, you are respectfully advised that the sub-
ject of your inquiry may not be credited with jail time~from
the 29th day of September 1937, the date of his sentence, to
the 27th day of June, 1938, the date of the issuance of the
mandate upon the afflrmance of his conviction by the Court of
Crlmlnal Appeals.
                                     Yours very truly
                                ATTORNEY GENERAL OF TEXAS

                                     By s/Zollle C. Steakleg
                                          ZollleeC. Steakley
                                          Assistant
ZCS:ob:wc
APPROVED AUG 8, 1940
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
