                                                         The Attorney             General of Texas
                                                                             September   19, 1983
          JIM MATTOX
          Attorney General



          Supreme      Court Building                 Mr. Fred Toler                                Opinion No.   JM-73
          P. 0. BOX 12546                             Executive   Director
          Austin.    TX. 76711. 2546                  Texas Commission on Law Enforcement           Ret    Whether  sheriff  may
          5121475-2501
                                                         Standards and Education                    reduce jail time pursuant to
          Telex    9101674-1367
          Telecopier     512/475-0266                 220-E Twin Towers Office Bldg.                article 511&t, V.T.C.S., for
                                                      1106 Clayton Lane                             time inmate serves prior to
                                                      Austin, Texas   78723                         judgment
              714 Jackson,    Suite 700
              Dallas.   TX. 75202.4506
              2141742-6944
                                                      Dear Mr. Toler:

                                                           You ask three questions concerning a sheriff's authority and
              4624 Alberta       Ave., Suite    160   discretion to award good time credits pursuant to article 5118a,
              El Paso. TX.       79905.2793
                                                      V.T.C.S., and the effect of such an award on other allowances or
              915/533-3464
                                                      credits.

-        -1           Texas,    Suite 700                  You first ask whether a sheriff may include a deduction based on
                 ,os,on.     TX. 77002-3111           the time an inmate is confined to jail prior to judgment and sentence
              71312236666                             in his commutation for good conduct.

              606 Broadway.        Suite 312
                                                            Article 5118a, V.T.C.S., provides in pertinent part:
              Lubbock.    TX.     79401.3479
              60617476236                                         Commutation of time for good conduct, industry and
                                                                  obedience may be granted the inmates of each
                                                                  county jail by the sheriff in charge. A deduction
              4309 N. Tenth, Suite S
              McAlle”,     TX. 76501.1665
                                                                  in time not to exceed one (1) day for each day of
              5121662.4547                                        the original sentence actually served may be made
                                                                  from the term or terms of sentences when no charge
                                                                  of misconduct has been sustained against the
              200 Main Plaza, Suite 400
                                                                  prisoner.
              San Antonio,  TX. 76205.2797
              512/225.4191
                                                      The statute grants a sheriff discretion in such an award. Kopeski V.
                                                      Martin, 629 S.W.2d 743, 746 (Tex. Grim. App. 1982).
              An Equal       Opportunity/
              Affirmative      Action     Employer
                                                           Article 4.03, section 2(a) of the Code of Criminal Procedure
                                                      applies to all criminal cases and provides that

                                                                  the judgment of the court in which the defendant
                                                                  was convicted shall give the defendant credit on
                                                                  his sentence for the time that the defendant has
                                                                  spent in jail in said cause, from the time of his
    --




                                                                                  p. 312
Mr. Fred Toler - Page 2 (m-73)




          arrest and confinement until his sentence by the
          trial court.

This provision is mandatory in giving credit for time served after
arrest but prior to sentencing. Jones V. State, 545 S.W.2d 771, 772
(Tex. Grim. App. 1975).

     When the two statutes are considered together, it is apparent
that pre-judgment time is to be treated as part of the original
sentence and as such may be considered for good time credit. Case law
supports this conclusion. In Kopeski V. Martin, supra, the court
stated that an inmate is entitled to credit for good conduct under
article 5118a for time served prior to sentencing to a term in the
county jail. Likewise, the absence of a formal sentence may not be
used to deny a prisoner credit under the statute. Ex parte Minjares,
582 S.W.2d 105. 109 (Tex. Crim. App. 1978). See also Gardner V.
J&&e, 542 S.W.2d 127, 130 (Tex. Crim. App. 1976); Attorney General
Opinion C-310 (1964). Accordingly, we conclude that a sheriff may
award good time credits under article 5118a for time served prior to
sentencing to a term in the county jail.

     Your second question concerns whether a sheriff must consider
pre-judgment time for good time credit in order to prevent denial of
equal protection.

     Since we have recognized that pm-judgment time is considered
part of the sentence for purposes of commutation, it follows that all
time actually served must be given equal weight. A sheriff must
"consider each inmate's conduct for such credits, and consideration
must be given equitably." Kopeski V. Martin, e,       at 746. Denial
of equal protection is likely to result if only post-sentencing time
is considered for good time credit. See Pruett V. State of Texas, 470
F.2d 1182 (5th Cir.), aff'd, 414 U.S.802 (1973).

     Your final question is whether an award of good time credit
precludes any other time allowance or credits such as manual labor
credit.

     Article 5118a provides in part that:

          No other time allowance or credits in addition to
          the conmutation of time for good conduct herein
          provided for may be deducted from the term or
          terms of sentences. (Emphasis added).

This limitation has remained a part of the statute since it was first
enacted. -See Acts 1955, 64th Leg., ch. 461, §l, at 1183.




                             p. 313
Mr. Fred Toler - Page 3 (JM-73)




     Where a statute is unambiguous, the language is determinative of
the legislative intent. Mrs. Tucker's Foods V. Calvert. 296 S.W.2d
787, 789  (TeX. Civ. App. - Austin 1956, writ ref'd n.r.e.). There is
nothing ambiguous or unclear about this provision. It plainly states
that, where an inmate accumulates credits for good behavior, no other
credits will be allowed.

     The legislative history of the most recent amendment to the
statute is further evidence that the legislature intended to so limit
credits for jail sentences. The original version of the bill as
passed by the Texas House of Representatives changed this part of
article 5118s to read:

         Except as provided in Article 43.10, Code of
         Criminal Procedure, 1965, as amended, no [++~a]
         other time allowance or credits in addition to the
         commutation of time for good conduct herein
         provided for may be deducted from the term or
         terms of sentences.

Engrossed Third Reading of House Bill No. 647, Bill File for House
Bill No. 647, 67th Leg., Legislative Reference Library. However, the
final version, passed by both houses, left the sentence as it read
when article 5118s was enacted by the Fifty-fourth Legislature. See
V.T.C.S. art. 5118a. The only reasonable conclusion is that a county
jail inmate may receive good time credits under article 5118a,
V.T.C.S., or manual labor credits under article 43.10, Code of
Criminal Procedure, but not both.

                            SUMMARY

            A sheriff may award good time credits pursuant
         to article   5iiaa   for time served prior to
         sentencing. He must give equal consideration to
         all time served in order to avoid denial of equal
         protection. Where good time credits are awarded,




                                   J h
         no other credits are allowed.

                                       Very truly your ,


                                           A
                                       JIM     MATTOX
                                       Attorney General of Texas

TOM GREEN
First Assistant Attorney General




                              p. 314
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Mr. Fred Toler - Page 4      (JM-73)




DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Jim Moellinger
Nancy Sutton




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