Dr. Ge.orgeBeto               Opinion No. C-309
Director
Department of Corrections     Re: Whether the order of Crimln-
Huntsville,Texas                  al District Court No. 4 of
                                  Harris County crediting the
                                  sentence of an Inmate of the
                                  Texas Department of Correc-
                                  tions under Article 768, C.
Dear Dr. Beto:                    C.P. Is a valid order.
          Your letter of July 30, 1964, requestingan opinion
by this office reads:
            "In the Criminal District Court No. 4
         of Harris County, Texas, at the November
         1963 Term, on November 18, 1963, in Cause
         No. 106979, Lawrence P. Schmidebergwas
         convicted of the offense of theft and his
         punishment was assessed at three years. On
         the same day, he was sentenced for not less
         than two nor more than three years and gave
         notice of appeal, perfected his appeal, and
         appealed his case to the Court of Criminal
         Appeals,, The Court of Criminal Appeals af-
         firmed the conviction and the date of the
         Mandate is May 1, 1964. On May~25, 1964,
         Schmldebergwas received at the Texas Depart-
         ment of Corrections,on commitmentpapers Is-
         sued in the above cause.
            'On June 17, lgf$, we received certified
         copy of an order entered by Judge A. PI.
         Krichamer on June 11, 1964, ordering that
         the above named DefendantAbe given credit
         on his sentence of the time from August 18,
         1963, to May 1, 1964, for time spent in jail
         pending appeal.
            II
             . e . .
            "In view of the fact that Article 768 C.
         C.P. authorizes the Court to give the De-
         fendant credft for time spent fn jail pending
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Dr. George Beto, page 2 (C-309)


         appealf and the'fact that the Inmate was re-
         ceived by the Texas Department of Corrections
         on May 25, 1964, is the order of Judge Krlch-
         amer under date June 11, 1964, a valid credit
         on the sentence of the inmate?"
         The order of Judge A. H. Krichamer reads:
            "On this the 11th day of June, A.D. 1964,
         it being called to the attention of the court
         that the defendant in the above styled cause
         was not given credit for the time he had re-
         mained in jail pending appeal herein to the
         Court of Criminal Appeals of the State of
         Texas, August 18, 1963, to May 1, 1964, which
         has been the intention of this Court:
            "It is therefore ordered, adjudged, and
         decreed by the Court that the sentence in
         Cause 106979, The State of Texas vs. Lawrence
         P. Schmldebeag,begin as of August 18, 1963.
            "The Clerk is here ordered to attach this
         order to the original sentence and forward a
         certified copy to the authoritiesof the Texas
         Department of Correctionsto be made a part
         of the commitment now in their hands."
         Article 768 of Vernon's Code of Criminal Procedure
reads:
            "If a new trial is not granted, nor judg-
         ment arrested in felony cases, the sentence
         shall be pronounced In the presence of the de-
         fendant at any time after the expirationof
         the time allowed for making the motion for a
         new trial or the motion In arrest of judgment;
         provided that in all criminal cases the judge
         of the court in which defendant was convicted
         may,wlthin hls discretion,give the defendant
         credit on his sentence for the time, orany


         %he trail court; ana provided further, that
         'inall cases where the defendant has been
         tried for any violatlon,ofthe'laws of the
         State of Texas, and has bden convicted and


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Dr. George Beto, page 3 (C-309)




                        3ions of &is Act shall,not ap-
         ply after convictionana sentence In felony
         cases in which bond or recognizanceIs not
         permitted by law.” (Emphasisadded)
          The Honorable Arnold H. Krichamer, Judge, Criminal
District Court No. 4 of Harris County, Texas, had advised us by
letter that it was the intent of the Judge to grant Defendant
credit on his sentence for jail time pending trial and sentence
from August 1.8,1963, to November 18, 1963, and for ail time
pending appeal from November 18, 1963, to May 1, 196i .
          It Is within the discretion of the trial judge in a
proper case to:
          (1) Give the defendant credit on his sentence for
time spent~in jail from the time of his arrest and confinement
until hia sentence, and further
          (2) Subtract from the original sentence the time
lain in jail pending appeal. The statute is specific in re-
quiring the trial judge to "again call said defendant before
him",and then “re-sentence the defendant"'and at that time sub-
tract from the orl.ginalsentence time lain in jail pending ap-
peal.
          The Judge did not specificallyfollow the statute.
However, he may do so at this late date.
          Under Article 768 of Vernonrs Code of Criminal Pro-
cedure, it Is within the discretion of the trial judge to give
the defendant credit on his sentence,forthe time spent in jail,
both before and after trial. It is our opinion that If the
Dr. George Beto, page 4 (C-309)


trial judge will recall the defendant before him and re-sen-
tence him he ?nay,in his discretion,provide -thereinthat the
defendant be given ,credltfor time spent in jail.


                The Order cif.'Crlmlnal
                                      District Court
            No. 4 of Harris County, Texas, crediting
            the sentence of an Inmate of the Texas
            De artment of Correctionsunder Article
            76g,~C.C.P~.,is not a valid order. How-
            ever, the judge may recall the defendant
            and re-sentencehim and therein nlve the
            defendant credit on his sentence-forthe
            time he spent in jail.
                              Very truly yours,
                              WAGGONER CARR
                              Attorney General of Texas




VFr/dt/br
APPROVED:
OPINION COM&UT'PEE
W. V. Geppert, ChalIlnan
Robert Smith
mdy   Coleman
Roy Johnson
Bill Allen
APPROVED FORTHE ATTORNEX GENERAL
By: Roger Tyler




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