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                    THE        ATTORNEY    GENERAL
                                   OF ?rExAB
                               Ausm~~. T-e VSWll

                                       May 12, 1975
        The Honorable Edna Cisneros                   Opinion No. H-   603
        County and District Attorney
        County of Willacy                             Re:   Authority of a sheriff
        Second Floor, Courthouse                            to permit a prisoner to
        Raymondville,   Texas 78580                         serve his sentence on
                                                            off-work hours and
                                                            weekends as provided
                                                            for by article 42.03,
                                                            Code of Criminal Pro-
                                                            cedure, and the power
                                                            of the trial court to
                                                            modify a sentence to
                                                            provide for the service
                                                            of time on.off-work
        Dear Ms.   Claneros:                                hours and weekends.

            You have asked our opinion concerning the following provision of
        article 42,03, Code of Criminal Procedure (the article dealing generally
        with the pronouncement of sentence in criminal Cases):

                    Sec. 5. Where jail time has been awarded;        .-
               the trial judge may, when in his discretion the ends
               of justice would best be served, sentence the defend-
               ant to serve hiss sentence during his off-hours, or
               on weekends.    When such sentence is permitted by
               the trial judge it must be served on consecutive days
               or on consecutive weekends. . . .

           You’observe   in your opinion request that:

                   The authority of a judge to allow the defendant
               to serve his ttme on weekends has created a problem
               in Willacy County. Defendants who have already been
               sentenced to serve jail sentences and who are serving
               said sentences are now approaching the Judges with
               informal requests to be permitted to serve their jail
               sentences on weekends or at night. Several of the
               Judges have taken the position that the matter is within
               the di,scretion of the Sheriff.


                                          p. 2674
The Honorable Edna Cisneror,       page 2     (H-603)




   You then pose the following questions:

            1. Can the Sheriff permit prisoners to leave his
       jail to work, etc., and permit them to eerve their jail
       sentences at his discretion (on weekends and nights)
       once they have been sentenced7

           2. Can the Court, during term time, modify its
       sentence to permit a Defendant who has already served
       part of his sentence to serve time on weekends, etc. ?

           3. Can a Court, after term time, modify its
       sentence to~permit~a Defendant to serve time on week-
       ends, etc. 7

    With regard to your first question, the sheriff has no authority to permit
a prisoner confined to his .keeping to serve this sentence on off-work hours
or on weekends unless the sentence pronounced by the Court specifies that
the sentence imposed be served in this fashion.

    Article 42.03 provides that it is “the trial judge” who must make the
determination that a sentence be served during off-work hours or on weekends;
no authority is given to the sheriff to make this determination.~

    The sheriff’s responsibility   for the custody of prisoners committed to his
care is set out by article 2.18,   Code of Criminal Procedure, which reads:

            When a prisoner is committed to jail by warrant
        from a magistrate or court, he shall be placed in jail
        by the sheriff.  It is a violation of duty ‘on the part of
        any sheriff to permit a defendant so committed to remain                   7.



        out of jail, except that he may, when a defendant is com-
        mitted for want of bail, or when he arrests in a bailable
        case, give the person arrested a reasonable time to pro-
        cure bail; but he shall so guard the accused as to pre-
        vent escape.

     The sheriff’s duties in safely keeping prisoners are further defined in
article 5116, V. T. C. S . , which provides in pertinent part:




                                    p. 2675
The Honorable Edna Cisneros,    page 3     (H-603)




           (a) Each sheriff is the keeper 01 the jail of his
       county. He shall safely keep therein all prisoners com-
       mitted thereto by lawful authority, subject to the order
       of the proper court, and shall k responsible for the
       safe keeping of such prisoners.   . . .

    Article 43.13, Code of Criminal Procedure,       provides for the release of
a prisoner sentenced to jail as follows:

       A defendant who has remained in jail the length of time
       required by the judgment and sentence shall be dis-
       charged.   The sheriff shall return the copy of the judgment
       and sentence, or the capias under which the defendant was
       imprisoned, to the proper court, stating how it was executed.

    In construing article 51 of the Code of Criminal Procedure of 1879 (the
earliest predecessor to article 2.18, Code Criminal Procedure of 1965). the
Court in Ex parte Wyatt, 16 S. W. 301 (Ct. App. 1891) observed:

           Cur statute (Code Crim. Proc. Art. 51) provides
       that when a prisoner is committed to jail by lawful
       warrant from a magistrate or court, he shall be
       placed in jail by the sheriff; and it is a violation of
       duty on the part of any sheriff to permit a defendant    ’
       so committed to remain out of jail, etc. . . . -The
       sheriff has no right, no matter what his motives,
       whether of humanity or not, to commute or alter this
       pupu          and any act of his doing so is a violation
       of his duty, and absolutely void. (Emphasis supplied).

    Accordingly,  it is our opinion that the Sheriff is without authority to modify
the sentence of a prisoner so as to allow the satisfaction of the sentence to be
accomplished on off-work hours or on weekends.

    Your second question concerns the power of the court during term time to
modify a sentence by awarding jail time so as to permit the execution of the
sentence during off-work hours or on weekends.

    The Texas Court of Criminal Appeals, in Stephens v. State, 277,s. W. 2d 911
(Tex. Crim. App. 1955), considered the propriety of the setting aside of one
judgment and the entry of another; the Court observed:




                                    p. 2676
The Honorable Edna Cirneros,    page 4      (H-603)




           Being within the term, the court had full power
       and control over the judgment entered and authority
       to correct, modify or set the same aside. rd. at 913.

    It is true that there is authority holding that where a defendant has served
a part of a oentence~ imposed under a judgment, the trial court may not thereafter
alter the judgment. -See Ex ua rte Brown, 477 S. W. 2d 552 (Tex. Crim. App. 1972);
and Ex carte Reynolds, 462 S. W. 2d 605tTex. Crim. App. 1971). However, the
Brown and Reynolds rule arises out of attempts by a court to increase punibh-
ment by the judgment modification, thus generating a double jeopardy violation.

    In Reynolds, the Court of Criminal Appeals struck down the trial court’s
attempted cumulation of sentences, which origtnally ran concurrently under the
earlier judgment, by relying on previous case:law:

           . . . The effect of the action of the court would be
       to punish appellant twice for the same offense.    Under
       our Constitution, no person, for the Barre offense, shall
       be twice put in jeopardy of life or liberty.  Constitution
       of Texas, art. 1. 5 14. 462 S. W. 2d at 607.

   The Court further added:

           It seems well established that a trial court is
       without power to set aside a sentence after the defendant
       has been committed thereunder, and impose anew or dif-
       ferent sentence increasing the punishment, even at ,the same
       term. . . . &&

    However, in Reynolds the Court specifically acknowled@“the      general rule
that a trial court has full power and control of its judgments, orders and
decrees, during the term at which they have been made, and that, in the
exercise of that power, he may, at the same term of court, correct. modify
or set them aside.” -Id.

    The limit on a court’s power to modify its judgment in the same term
after the accused has suffered some punishment under it has been stated in
terms of a lack of power to change it “in any substantial respect. ‘I Williams
v. State, 170 S. W. 2d 482, 486 (Tex. Crim. App. 1943); Grisham v. State, 19
Teat. App. 504, 515 (Tex. Ct. App. 1885).




                                  p. 2677
The Honorable Edna Cisneros,     page 5   (H-603)




    Gne court has explained the difference between substantial and incidental
elements of a sentence as follows:

           The substance of an imprisonment sentence is
       that part of it which prescribes the kind and amount
       of the punishment.    These elements of it the court
       cannot change. . ; .

           The portions of it dtrecting when execution shall
       commence. or in what particular prison it shall be
       accomplished, are not of substance, and may more
       freely be added or altered.   Fels v. Snook, 30 F. 2d
       187 (N.D. Ga. 1929).

    Accordingly, under the authorities we believe it would probably be held
that where a trial court does not add to the punishment originally imposed nor
decrease its severity, the court can modify the original judgment by providing
for a more convenient way of satisfying the judgment: ed,     the service of the
sentence imposed on off-work hours and weekends.         ,

    Your third question concerns the power of a court to modify a judgment
where the term of court in which the original judgment tis entered has
expired.   In this instance, the court may not modify the judgment so as to
permit the sentence to be served during off-work hours and Weekends. Ex
parte Reynolds, supra.      But where the court at the time of the originalzntence
actually called for the serving of time during off-work and weekend periods
and the provision therefore was erroneously omitted from the sentence as
drawn and entered in the records, the court can make the correction to reflect
what actually transpired at the initial hearing by a nunc pro tune order, even
after term time has expired.     Code Crim. Proc. art. 42.06; Ex parte Brown,
supra.

                               SUMMARY

            Where not provided for in the sentence, a sheriff
        may not permit a defendant to serve his time during
        off-work hours and on weekends.   The trial court may,




                                    p. 2678
The Honorable Edna Cisneror.     page 6   (H-603)




      however, modify the sentence to provide for service on
      off-work hours and on weekends during term time, but
      not after the term hs expired.

                                      Very truly yours,


                                              /s&
                                      JOHN L. H;LL
                                      Attorney General of Texas
                “!P
APPROVED:




DAVID M. XENDALL,      First Assistant




C. ROBERT HEATH.      Chairman
Opinion Committee




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