                    THEA'ITBECNEYGENERAL
                            OF TEXAS
                                AunTIN.    TEzxas      78711
                                      March       27, 1973




Honorable  John Henry Tatum                            Opinion   No.   H- 21
County Attorney,  Angelina County
P. 0.      BOX 582                                     Re:   Whether     sentence of person
Lufkin,         Texas   75901                                convicted    of felony may be
                                                             reduced by time that he has
                                                             spent in county jail awaiting
                                                             determination      of his appeal.
Dear      Mr.     Tatum:

      In your request for the opinion of this office you state that a man in
the county jail was convicted      of armed robbery,       was sentenced    to four-
teen years in the Texas Department         of Corrections,     and has been in
jail for thirty months.    His conviction     was recently    affirmed    by the
Court of Criminal    Appeals.     Because    of the length of time he has been
in jail and because he has apparently        reformed    and will make a good
citizen,   you ask whether    a district judge has authority       to reduce his
sentence.
                         .
     It is our opinion that the court has no jurisdiction,     except for the
app:!lcation  of Article   42. 03. Vernon’s    Texas Code of Criminal    Proced-
ure. l,o enter any order affecting     the judgment and sentence.      State v.
Kiein,    224 S. W,2d 250, (Tex. Crim.      1949).  Therefore,  the district
judge may not reduce the overal,        sentence to a term less than fourteen
years.

    On the ot,her hand, Article 42. 03 ores provide that the judge of the
court m which t,he defendant was convict,ed may, within his discretion,
give the defendant credit for time spent m jail.

     In ,_-
        Ex parte Freeman,         486 S. W, 2d 556( Tex. Grim. 1972), the court
helo that, under Article      42.03,    the trial judge had complete  discretion
as to credii on a sentence for time spent in jail but that. pursuant to
N. Carolina    v. Pearce,      395 U. 5711, 23 L. Ed. 2d 656, 89 S, Ct. 2072
(1969), and Robinson      v. Beto, 426 F. 2d 797 (5th Cir. 1970), the defend-
ant is constitutionally     entitled to credit for the time from conviction
until determination     of his appeal.



                                          p* 97
  Honorable    John Henry   Tatum,    page    2   (H-21)




        To answer your question     specifically,     we would state that the
  district  judge has no authority    to reduce the defendant’s       sentence
  from fourteen     years to some lesser      term.     He does have discretion,
  however,    to grant credit for pre-trial       time ,spent in jail between
  arrest   and final conviction.   and must give credit for time spent in
  jail awaiting   determination  of apx

                              SUMMARY

               After appeal to the Court of Criminal       Appeals  and
          affirmation    by that court,   the trial court lacks juris-
          diction to reduce a sentence but does have jurisdiction
          and discretion    to grant credit for time spent in jail
          prior to final conviction     and must give credit for time
          spent in jail pending appeal.

                                             Very    truly     yours,




                                             Attorney        General    of Texas

. APPl$IVED:




  DAV:D M. KE-NDALL.
  Opinion Committee




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