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                                                     July 28, 1987
         RX   xxlTox
         xrroRxEy      c3ExERAl.


                       Mr.JimLyuaugh                         Opinion No.   JM-759
                       Director
                       Texas Department of Corrections       Re: Whether the TexasDepartment
                       P. 0. Box 99                          of Corrections granting of good
                       Huntsville, Texas   77340             time to prisoners for time iu-
                                                             carcerated in a county jail vio-
                                                             lates section 3(c) of article
                                                             6181-l. V.T.C.S.

                       Dear Mr. Lynaugh:

                            You inform us that it is the practice of the Texas Department of
                       Corrections (TDC) to award good conduct time to all newly received
                       prisoners for time incarcerated in county jails. Good conduct time,
                       or "good time" earned by an inmate will lessen the time he must spend
                       behind bars without reducing the length of his sentence. See V.T.C.S.
                       art. 6181-l. 013, 4; Comment, Calculation of Time Creditsfor Texas
                       Prisoners. 9 St. Mary's Law Journal 541 (1978). For example, an
                       inmate assigned by TDC to Class 1 till accrue 20 additional days for
                       each 30 days actually served. V.T.C.S. art. 6181-l. 53(a)(l).

                            Judicial decisions require that the time a prisoner spends in
                       jail pending trial or appeal must be counted toward his full sentence
                       time. Pruett V. Texas, 468 F.2d 51, 56 (5th Cir. 19721, aff'd. 414
                       U.S. 802 (1973). Jones V. Texas, 596 S.W.2d 134, 139 (Tex. Crim. App.
                       1980). He is also entitled to consideration for good time credits for
                       time spent in the county jail pending appeal to the Court of Criminal
                       Appeals. Pruett, supra; Gardner V. State, 542 S.W.2d 127 (Tex. Grim.
                       App. 1976).

                            Article 42.03 of the Code of Criminal Procedure and article
                       6181-l. V.T.C.S., codify these judicial decisions. Article 42.03 of
                       the Code of Criminal Procedure states in part:

                                      Sec. 3. If a defendant appeals his conviction,
                                   is not released on bail, and is retained in a
                                   local jail as provided in Section 5, Article
                                   42.09, pending his appeal, the judge of the court
                                   in which the defendant was convicted shall give
                                   the defendant credit on his sentence for the time




                                                         p. 3547
Mr. Jim Lynaugh - Page 2     (JM-759)


                                                                        7




         that the defendant has spent in      jail   pending
         disposition of his appeal. . . .

            Sec. 4. When a defendant who has been
         sentenced to imprisonment in the Department of
         Corrections has spent time in jail pending trial
         and sentence or pending appeal, the judge of the
         sentencing court shall direct the sheriff to
         attach to the colnmitment papers a statement
         assessing the defendant's conduct while in jail.
         On the basis of the statement, the Department of
         Corrections shall grant the defendant such credit
         for good behavior for the time spent in jail as he
         would have earned had he been in the custody of
         the department. (Emphasis added).

Code Grim. Proc. art. 42.03. 943, 4. These provisions were enacted in
1973. Acts 1973. 63rd Leg., ch. 91, at 205.

     Article 6181-1, V.T.C.S., which pertains to the accrual of good
conduct time, states in part:

            Sec. 3. (a) Inmates shall accrue good conduct
         time based upon their classification as follows:

            (1) 20 days for each 30 days actually served
         while the inmate is classified as a Class 1
         inmate;

             .   .   .   .

            (c) A sheriff who has custody of a prisoner
         imprisoned in a county jail after conviction of an
         offense punishable by imprisonment in the depart-
         ment shall keeo a record of the orisoner's
         behavior in jail: If the prisoner is transferred
         to the department, the director shall review the
         prisoner's jail record and may award good conduct
         time to the prisoner up to an amount equal to that
         which the prisoner could have accrued during such
         period if incarcerated in the department.

             .   .   .   .

            (4) Good conduct time applies only to eligi-
         bility for parole or mandatory supervision as
         provided in Section 15, Article 42.12. Code of
         Criminal Procedure, 1965, as amended, and shall




                                  p. 3548
Mr. Jim Lynaugh - Page 3   (JK-759)




          not otherwise affect the inwate's,term. (Emphasis
          added).

V.T.C.S. art. 6181-1, 113, 4. Subsection 3(c) of article 6181-l.
V.T.C.S., was enacted in 1983. Acts 1983, 68th Leg., ch. 375, at
2045.

     Your specific question about article 6181-l. V.T.C.S.. is as
follows:
             Does the policy of TDC in uniformly granting
          incoming prisoners good conduct time for time
          spent incarcerated in county jails prior to
          arrival at TDC violate the provisions of article
          6181-l. section 3(c)?

     In your letter, you explain why TDC adopted this policy:

          Historically, TDC had concluded in the late 1970's
          that in order to deny any incoming prisoner good
          conduct time for the period of his county jail
          incarceration, the disciplinary process of the
          jail in question would have to comply with the due
          process requirements of Wolff v. McDonnel. As TDC
          was not in a position to verify such compliance in
          each instance the Director was advised by his
          General Counsel to deny no incoming prisoner good
          conduct   time   for  alleged misconduct while
          incarcerated in jail prior to arrival at TDC.
          That practice has continued to date.

In Wolff v. KcDonnel, 418 U.S. 539 (1974) the Supreme Court determined
that the requirements of procedural due process applied to the denial
of good time credits to state prison inmates.

     A sheriff is required to keep a record of the conduct of a person
who is cowaitted to the Department of Corrections but who serves some
of his sentence in the county jail. Code Criw. Proc. art. 42.03;
V.T.C.S. art. 6181-l. The record is sent to the Department of
Corrections when the prisoner is transferred there. The sheriff has
no authority to award good time credits to persons committed to TDC
for felony convictions; that authority is vested in TDC. V.T.C.S.
art. 6181-l; Gardner v. State, 542 S.W.2d 127 (Tex. Grim. App. 1976).
He is authorized to award good time credits to persons committed to
serve misdemeanor sentences in the county jail. Gardner v. State,
supra; V.T.C.S. art. 5118a. Good time of county prisoners may be
forfeited only in compliance with disciplinary procedures approved by
the Texas Cossoissionon Jail Standards. V.T.C.S. art. 5118a. Rules
of the Texas Commission on Jail Standards require the sheriff to have
a written inmate discipline plan which includes provisions for notice;




                                 p. 3549
Mr. Jim Lynaugh - Page 4   (JK-759)




                                                                         i
a hearing, an opportunity for the inmate to be heard and to call
witnesses, and a written statement by the factfinders as to the
evidence relied on. 37 T.A.C. 5283.1(l). (5).

     However, the statutes do not state whether the sheriff's record
of a TDC prisoner's conduct in jail way include only instances of
misconduct established according to the procedures of the Inmate
Discipline Plan. Article 42.03 of the Code of Criminal Procedure
provides for the sheriff's "statement assessing the defendant's
conduct while in jail." Code Grim. Proc. art. 42.03. Article 6181-l.
V.T.C.S., requires the sheriff to "keep a record of the prisoner's
behavior in jail," without providing any safeguards against the
inclusion of unreliable information in the record. Moreover. since
TDC admits persons who have served time in many different jails, it is
possible that they have been subject to a variety of rules defining
misconduct.

     The director of the Department of Corrections "shall review the
prisoner's jail record." V.T.C.S. art. 6181-1, 13(c). He is not
bound by that record. To the extent section 4 of article 42.03 of the
Code of Criminal Procedure suggests that he is, we believe that
provision is modified by the later enacted subsection 3(c) of article
6181-l. V.T.C.S., which gives the director discretion to award good
conduct time "up to an amount equal to that which the prisoner could
have accrued during such period of incarceration in the department."

     The director's discretion must be exercised consistentlv with
applicable constitutional provisions. In Ex parte Williams, 589
S.W.2d 711 (Tex. Grim. App. 1979) (en bane), the Court of Criminal
Appeals considered an attack , on equal protection grounds, on the TDC
practice of denying an inmate all good time credit earned in jail if
he had engaged in one instance of misconduct in the county jail.
Misconduct at TDC, in contrast, caused the denial of credit only for
accrued good time. The court stated that the exercise of discretion
by the director of TDC

         must not be circumscribed by an inflexible rule
         which prescribes different and less favorable
         consideration   for   a   Texas    Department   of
         Corrections inmate who has served part of his terw
         in a county jail. (Emphasis added).

Ex parte Williams, 589 S.W.2d 711 (Tex. Grim. App. 1979) (en bane).

     In our opinion, the director's exercise of his permissive
authority under section 3(c) of article 6181-l. V.T.C.S., in accor-
dance with the policy you have described does not constitute an abuse
of discretion. In Pruett v. State, 468 F.2d 51 (5th Cir. 1972) the
court presumed that the prisoner‘s conduct in the county jail was




                                 p. 3550
Mr. Jim Lynaugh - Page 5   o-M-759)




good. where the sheriff had not kept any record of his conduct.
Pruett v. State, 468 P.2d 51 (5th Cir. 1972). aff'd en bane, 470 F.2d
1182 (5th Cir). aff'd. 414 U.S. 802 (1973). We believe the director
may adopt a similar presumption about a new prisoner's conduct in the
county jail and may exercise his discretion in the award of good time
credits to insure even-handed treatment of prisoners who have served
part of their sentence in the county jail.

     Good conduct time is furthermore not a vested right. V.T.C.S.
art. 6181-1, 04. If a* inmate commits an offense or violates a rule
of the department during his actual term of imprisonment, "all or any
part of his accrued good conduct time may be forfeited by the
director." Id. An inmate will not necessarily keep the good conduct
time based on his service in the county jail if he commits an offense
or violates a rule of TDC while incarcerated there.

                              SUMMARY

             Section 3(c) of article 6181-1, V.T.C.S., is
          not violated by the Department of Corrections
          policy of awarding good conduct time to all newly
          received prisoners for time incarcerated in county
          jails.




                                     LJ &a%
                                        Ver   truly your


                                             A
                                        JIM     MATT-OX
                                        Attorney General of Texas

MARYKELLER
Executive Assistant Attorney General

JDDGE ZOLLIE STZAXLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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