             REA~~ORNEY            GENERAL
                      OFTEXA~




Honorable D. W, Stakes, Manager
Texas'Prison System
Huntsville, Texas
ATTENTION:   Mr. J,C. Roberts
Dear Sir:                 Opinion No. O-7426
                          Re: The~correction of a~term oftse%
                               tence; correction of date of sen-
                               tence/presence of defendantfor
                               sentence, and necessary papers to
                               prison officials for release to a
                               court of a convict for trial or
                               aa a witness.
       This acknowledges receipt of your letter of recent
date, which reads:
       "As Record Clerk for the Texas Prison System,
    I would appreciate an opinion on the following
      "(1) Quite often after commitments are received'
   and prisoners confined to prison we receive a corrected
   copy of sentence changing date of sentence to allow
   for time spent in jail, Is this a legal procedure?
   (2) Also, advfse if,a prisoner sentenced to prlso,n
   on November 13, 1937, wlth~a term of two to seven
   years on a plea of guilty could be changed at this
   time to read two to three years. (3) Can this be
   done by the Judge of the Court which sentenced the
   prisoner by forwardfng corrected copy of commlt-
   ments to this office without returntng the prisoner
   to the Court which passed said sentence.
      “(4)  After prisoners are received with commit-
   ments and another county should want the prisoner
   for'trial on charges pending or aa a material wit-
   ness, what papers should the court furnish the
   Texas Prison System before we can legally release
   a prisoner from Prison,"
       You will note that we have numbered your questions for
clarity.
Honorable D. W. Stakes - page 2         O-7426


       As to question (2):
       In Ex Parte Mattox, 129 S.W. (2d) 641, rehearing denied,
relator, Mattox, had been confined for two years in the peni-
tentiary but was released on a writ of habeas corpus when '_t
W&S determlned that the judgment and sentence under whfch he
was being held were erroneous. The trial (District) Court
then corrected said errors by a nunc pro tune j,udgmentand
sentence and again placed Mattox In durance vile. Mattox ap-
pealed, and thenCourt of Criminal Appeals in upholding the
Trial Courts's actlon said:
       "Upon the hearfng of the State's motion for
    judgment nunc pro tune the District Court found
    that the judgment 0 o . o and sentence . S e .did
    not reflect the true judgment entered nor the sen-
    tence pronounced,
                    and   directed the entry on the
    minutes of the nunc pro tune judgment and sentence
    as reflecting the m    facts 0 D . e .' (Emphasis
    added), To the same effect see Bennett v. State,
    194 S.W. 145, Motion for rehearing overruled.
      'In Ex Parte Patterson, 141 S.W. (26) 319, rehearing
denied,~the Court 'ofCriminal Appeals followed the Bennett and
Mattox cases and said:
       "It seems that the~basis of all such powers
    (of the Court making corrections) is that the or-
    ders or minutes thereof may be mad,eto speak the
    truth'relative to the occu.rrencesabout which the
    mlnu'cespurport to speak; there can not be a cor-
    rection of what should have been done, but can.
    only be a correctlon to makesthe minutes show wha't
    was actually done at the time." (Words In paren-
    theses and emphasis added).
       In view of the foregoing we conclude that a form of sen-
tence of two to seven years may be corrected to a term of two
to three years only If the latter term was the one actually pro-,
nounced by the Court passing sentence. Therefore, ff you receive
from the Court which pronounced sentence a copy of the commit-
ment purporting to set forth the true and correct term of sen-
tence, then that term will be considered to be the correct term
of sentence.
       As to question (1):
       By reason of the authorities cfted supra it fs apparent
that the %ourt which pronounced sentence could correct an ln-
correct date of sentence to show the actual date of sentence.
-   -




        Honorable D. W. STakes - Page 3        O-7426


        That Fs, the record may be corrected to show the date on which
        sentence was actually pronounced,

              We also note Article 768, CCP, which provides:

               "If a new trial is not granted, nor judgment
            arrested in felony cases, the sentence shall be pro-
            nounced in the presence of the defendant at any time
            after the explratlon of the time allowed for makIng
            the motion for a new trial or the mottonin arrest of
            judgment; provided that in all criminal cases the judge
            of the court in which defendant was convIcted, may wlth-
            Ln his discretion, give the defendant credit on his sen-
            tence for the time, or"any part thereof; whic~h said de-
            fendant has spent in jail in said cause, from the time
            of his arrest and confinement until his sentence by the
            trial court; and provided further that in all cases where
            the defendant has been tried for any violation of the laws
            of the State of Texas, and has been convicted and has ap-
            pealed from said judgment and/or sentence of conviction,
            and where said cause has been affIrmed by the Court of
            Criminal Appeals, and after receipt of the mandate by
            the CIerk~of the trial court, the judge Is authorized
            to again call said defendant before him, and if, pend-
            ing appeal, the~defendant has not made bond or entered
            into recognizancesand has remained in j~ailpendIng the
            time of such appeal, said trial judge may then fn his
            dlscretton re-sentence the defendant, and may subtracts
            from the original sentence pronounced upon the defend-
            ant, the length of tfme the defendant has lain in jail
            pending such appeal; provIdea, however, that the pro-
            visions of this Act shall not apply after conviction
            and sentence in felony cases in which bona OP recognl-
            zance is not permitted by law."
               By reason of Article 768, CCP, it is apparent that the
        Court which pronounced sentence can give credit to prisoners for
        time spent in confinement prior to sentence. Therefore, if you
        receive from said Court a copy of sentence purportfng to show
        the true and correct date of sentence, then that date will be
        considered to be the correct date of sentence.
               ItLs our opLnion that under the facts'subm1tted the
        Court which pronounced sentence has not the~power'to change the
        term'or date of sentence on record but may only correct said
        record to show what the Court actually did. It isfurther our
        opinion that the credit given by the Court pronouncing sentence
        for time spent In confinement prior to trial smst be made at
        the time of sentence. If credit is given by the Court for time
        spent in jafl by the defendant pending his appeal, It must be
Honorable D. W, Stakes - vage 4         O-7426


done before the convict is transferred to the penitentiary, for
the Court cannot re-sentence him in absentia. Of course, If
the sentence entered upon the minutes of the Court in such cases
does not speak the truth and is not in accord with~the sentence
actually pronounced by the Court, it may be corrected,by the
Court and made to speak the truth. On the other hand, if the
sentence entered Ln the minutes of the Court does speak the
truth, the sentence so entered may not be changed after the
Court has adjourned for the term at which the sentence was
pronounced or has expired by operation of law.
       In this connection we are not to be understood as pass-
lng upon the constltutlonality of those parts of Article 768
permitting a trial jud,ge,in his discretion, to give the defend-
ant credit on his sentence for time spent in jail either be-
fore his convlctlon or while his case Is on appeal, for that
question Is not before us.
       As to question (3):
       The defendant must be present when sentence is pronounc-
ed, Article 767,~CCP. However, in this instance It appears
that~the Court Is not sentencing but 1s correcting the redord ~,
to show the actual sentence pronounced. In Ex Parte Patterson,
cited supfa, one of the-errors complained of by relator was
that he was not present, although notified, at the hearl'ngon
the'motlon to correct the minutes. The Court of Criminal
Appeals said:
       0 0 . .we do not think his (relator's) presence at
    the hearing was necessary to any greater degree than was
    his presence at the entering of the orlginal minutes de-
    sired to be corrected." (Word In parentheses added).
       We, therefore, conclude that the presence of the prlson-
er Ln thLs situation would not be requlred when such correction
is entered.
       As to question (4)
       In Ex Parte Lowe, 251 S.W. 506, rehearing denied, the
Court of Criminal Appeals said:,
       "We how  of no statute in terms directing the
    issuance of the warrant in question, but at common
    law and in practice, a warrant issued from the bench
    or court IS denominated a 'bench warrant.'
       "It is also the writ usedto bring a convlct~con-
    fined Ln the penitentiary to trial in another Case.”
Honorable D. W. Stakes - page 5          O-7426



       InLee v. State, 70 S.W. (26) 190, the Court of Crim-
inal Appeals adopted the opinion of the Commlsslon of Appeals
which said:
       "If Lee, although a convict and confined In the
    penitentiary, was a competent witness and his testi-
    mony was material to appellant, then the appellant
    was entitled to his testimony.
       "If the court had ordered the bench warrant
    issued . . . . he (Lee) could have been brought
    back .~. . . within a few hours time and without
    causing any delay in the trial of any case." (Word
    In parentheses added).
       In view of the foregoing it Is our opinion that the
Texas Prlson System authorities may release~a prlsoner for 'trial
or as a ~materlalwitness upon the furnishing of a bench warrant,
the form of which we are encloslng for your files.
        We trust that the foregoing fully answers your questions.
                               Yours very truly
                            ATTORNEY GENERAL OF TEXAS

                               By s/Wllllam E. Stapp
                                    WilllamE. Stapp
                                    Assistant
wBs:id:wc
Encl.

APPROVED OCT 25, 1946
s/irarrlsToler
FIRST ASSISTANT
ATTORNEYGEEERAL
Approved Opinion Committee By s/BWB Chairman
