Honorable Marvin R. Brown, Jr.
Criminal District Attorney
Fort Worth, Texas
Dear Sir:               Attention: Austin F. Anderson
                        Opinion No. o-1936
                        Re: Suspended Sentence Law
        We are in receipt of your letter of February 3, 1940,
seeking this department's opinion upon the following state of
facts, which are taken from your letter:
       "On the 28th day of October, 1937, Homer
   Dodd was convIcted in the Criminal District
   Court of Tarrant County, Texas, in cause num-
   ber 40132 for the offense of burglary upon his
   plea of guilty and was given a sentence of two
   years in the penitentiary, which was by the
   court suspended during the defendant's good T‘-
   behavior. On the same day, said defendant was
   released upon his own recognizance.
       "Thereafter, on the 14th day March, 1939,
  and while said suspended sentence was still
   in effect, said defendant was convicted in the
   United States District Court for the Northern
   District of Texas, Fort Worth Division, Fn
   cause number 7221, criminal, under the name of
   George Homer Dodd upon his plea of guilty enter-
   ed therein on the 14th day of March, 1939, to
   certain charges in an Indictment returned in
   said cause charging violation of the United
   States Code, Title 12, section 588-b, In which
   judgment of the court was that said defendant be
   imprIsoned in an InstItutlon of the penitentiary
   type for thirteen months. George Romer Dodd,
   said defendant   in both of the above causes, was
   delivered to th; warden of the United States
   Penitentiary at Leavenworth, Kansas. by J. R.
   WrFght, United States Marshal for the Northern
   District of Texas, on the 27th day of March,
   1939, where he is still detained under said
   sentence.
Honorable Marvin H. Brown, Jr. - page 2         o-1936


        "On the 24th day of March, 1939, there was
    issued out of the Criminal District Court of
    Tarrant County, Texas, In said cause nuniber
    40132, an alias caplas ordering the body of
    sala Homer Dodd to be bro&befbre    the Ronor-
    able District Court In and f'orsaid Tarrant
    County for the purpose of having a sentence
    pronounced upon the original judgment of con-
    viction In said cause."
        It is further made to appear that the alias capias was
not served and the said Homer Dodd was not sentenced by the
court on his original convl.ctlondurfng the time assessed as.~
punishment in the case, and for which punlshment he received
a suspended sentence.
        The question propounded by you to this department is
whether or not the State court has the power, after the explra-
tlon of the time assessed as punishment in that court, to re-
voke the suspended sentence and sentence defendant to serve
the tiniefor which he received a suspended sentence, where he
was again convicted of a felony during the period of his sus-
pended sentence.
        We do not regard the above question to be an open one
In the State! The Court of Criminal Appeals has passed upon
the question In the case of Clare v. State, 54 84. (2) 127.
The court in this case reached the conclusion that the trial
court does not have the power, after the suspended term has
ended, to revoke the suspended sentence, and sentence the de-
fendant to serve the sentence Fn the penitentiary. We quote
from Chief Justice Morrowts opinion Ln the above case:
       "It is understood that the suspension of
   the sentence of one convicted of crime is not,
   in the absence of statutory authority, one of
   the inherent powers of the trial judge. See
   State of Utah v. Zolantakls, 70 Utah, 296, 259
   P. 1044, 54 A.L.R. 1463, and authorities cited
   in notes on page 1471 of 54 A.L.R.
       "In this state the subject is covered by
   statute and limited thereby. That Is to say,
   that the accused; at any time after the term of
   his covictlon has expired, may, upon showing
   that he has not been subsequently convicted, be
   released from the suspended sentence by an order
   of the court. Likewise, if within the period
   of his conviction under a suspended sentence he
   Is again convicted of a felony, the court has
Honorable Marvin R. Brown, Jr. - page 3        o -1936


    authority to recall the suspended sentence and
    make the judgment final. Seearticles 779 and
    780, C.C.P. The time within which.the court
    may act is limited only by the duration of the
    sentence. That is to say, after the time for
    which one is convicted and placed under a sus-
    pended sentence has expired, it Is not within
    the power of the court to recall the suspension
    and make the judgment final. This was held in
    the case of Rx parte Coots, 85 Tex. Cr. R. 334,
    212 S.W. 173.   So far as we are aware, there
    are no other limitations upon the right of the
    court to recall the sentence. In the present
    Instance, the recall of the suspended sentence
    was within the duration of the conviction, and
    therefore.was within the jurisdiction of the
    trial court."
        It Is doubtless true that this holding of Judge Morrow
was not absolutely necessary to a disposltlon of this case,
since the defendant there had been convLcted of a second felony
and his original suspended sentence forfeited, and defendant
sentenced during the term the sentence was suspended on the
first conviction. Nevertheless, we cannot agree that the hold-
ing was under such circumstances as to render It purely dicta.
It appears that Judge Calhoun, a Commissioner of the court,
had written the original opinion, and had held that the court
had the power during the term of the suspended sentence to
sentence the defendant, where he was again convicted"upon
another felony during the term of the suspended sentence.
Judge Morrow's opinion was delivered upon motion for rehear-
ing and takes occasion to discuss the power of the court to
sentence one under the suspended sentence statute after the
term of such suspension had expired, and reached the conclusion
that the power was lost after the term of the suspended sen-
tence had expired. The court having expressly passed upon
this question, we think it is governed by the rule Fn the case
of State v. O'Connor, 73 S.W. 1041, by the Supreme Court, in
which Judge Brown had this to say:
       I'*l * It is claimed that a determination of
   the questlon was not necessary to the decision of
   the Railway Company v. Jarvis, and that the opinion
   in that case is not authority upon the issue as now
   presented. It 1s true that the case then before the
   court might have been disposed of without passing
   upon the validity of the judgment, but the issue
   arose upon the facts, and was presented to and de-
   cided by the court. It is frequently the case that
   a court discusses and decides questions presented
Honorable Marvin B. Brown, Jr., - page 4          o-1936



    which muht be emitted in a final determination
    of the case, but that does not affect the weight
    of the opinion as authority. We follow the case
    of Railway Company v. Jarvis, because of its au-
    thoritative character, and because we unquallfied-
    ly approve of the conclusion reached by the court
    upon this question."
        Upon the facts submitted by you, and the foregoing
authorities, you are advised that Fn the opinion of this
department the court would not now have the power to sentence
the defendant.
                              Very truly yours
                            ATTORNEYGENERAL OF TEXAS

                              By s/Grover Sellers
                                   Grover Sellers
                                         Assistant
GS -RR-WC
APPROVED MAR 5, 1940
s/Gerald C. Mann
ATTORNEYGENERAL OF TEXAS                         -._

APPROVED OPINION COMMITTEE BY s/BWB CRAIRMABI
