                       my   5.   1966
Dr. George J. Beto              Opinion No. c-677
Director
Texas Department of Corrections Re: When an original con-
Huntsville, Texas                    vlction is declared
                                     void by a federal court,
                                     is the defendant en-
                                     titled to calendar time
                                     served on the original
                                     conviction,on a sub-
                                     sequent conviction for
                                     the same offense and
Dear Dr. Beto:                       related question.
        You have sent two letters requestingan opinion of
this office, both letters being dated February 14, 1966.
In your first letter you ask two questions, First you ask
if a defendant, on a subsequent convictionfor the same
offense, is entitled to calendar time served on the orig-
inal conviction when the original convictionhas been set
aside and declared void by a federal court. Next you ask,
if the answer to your first question Is In the affirmative,
if the defendant is entitled to good time earned on the first
conviction.
        In the aase of Ogle v. State, 63 S.W. lOCg, (Tex.
Crim.lqOl), the court held that an appellant convicted of
murder-undera void indictment,who had served 17 years
under the void sentence and was released by habeas corpus,
was not entitled to have his time served under the void
convictiondeducted from a sentence imposed after a subse-
ququ;tconviction for the same offense under a valid lndict-
    .
        The Ogle case has been cited as authority numerous
times in Texas as well as several other jurisdictions. 'Ke
Texas Court cited it as authority as recently as 1957 in the
case Ex parte M. J. Nations, 301 S.W.2d 675, (Tex.Crlm.1957).
        In your second letter you ask if a defendant is en-
titled to good time earned under a sentence declared void
by an order of a federal court when such defendant is re-
turned to the state court in which he was originally con-
victed and is re-sentenced,said re-sentence  being dated
back to begin at the same time the void sentence began.
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Dr. George J. Beto, page 2 (C-677 )


        In the Nations case, supra, relator sought his
release from coiif?%i%nt by writ of habeas oorpus alleging
that the sentenoe by vlrtue of which he was confined was
void because his trial counsel was not present at the time
he was sentenced. Ihe Court, in its opinion, stated:
             "Relator was sentenced on April 5, 1950,
          to not less than two nor more than 25 years
          for the offense of assault with intent to
          rape,
             "Relatortsprison record shows that he
          has credit on such sentence for more than
          11 years and 6 months.
             "If this Court were to grant the writ,
          we would not order relator disaharged,as
          he prays, but would order him returned to
          Brown County for re-sentencingand relator
          would lose the credit which he has earned.
          Where a pfisoner secures hts release from
          oonfinementunder a void sentence, he may
          not claim credit for the tlme he has served
          under such sentence. Ogle v. State, 43 Tex.
          Cr.R. 219, 63 S.W. 1009, and Marshall v.
          State, 73 Tex.Cr.R. 531, 166 S.W. 722, L.
          R.A. 1919, 526."
        The United States Court of Appeals for the Fifth
Circuit has recently waved a warning flag in circumstanaes
such as this. In the case of Ed e v, Wainwright, 347 F.2d
                              --% said:
190, (1965) at page 194, the tour
             “The question Is a knotty one which
          should be consideredby the appellant and
          the oounsel who will represent him upon
          remand. We express no opinion on whether
          It would be a denial of due proaess for the
          State to relncarcerateEdge for the same of-
          fense, if he is sucoeasful in obtaining
          habeas corpus relief, without any oredit
          for the twelve years he has already served.
          The spectre of Edge’s being subjected to as
          much as twenty more years of prison is such,
          however, that we feel aonstrainedexpressly
          to allude to the problem."
However, that same oourt, in the same case, at page 193,
said:
                            -3261-
Dr. George J. Beto, page 3 (C-677 )


          "One more observation-isin order. Edge
       has already served over twelve years of a
       fifteen year sentence. It has not yet been
       held, to our knowledge, that the State could
       be precluded from retrying him on the man-
       slaughter charge or from refusing to credit
       his twelve-yearts service against any subse-
       quent sentence which might be Imposed upon
       him."
        Like the Fifth Circuit Court of Appeals, this
office knows of no holding that would preclude the State
from retrying a defendant for the same offense or from re-
fusing to credit him with the time he has served under a
void sentence, against any subsequent sentenoe which might
be imposed upon him.
        The 0 le case, supra, and the Nations case, supra;
were both dec
            -k-ed by the Court of Crimwpeals,       the
highest criminal appellate court in the State of Texas.
This office is bound by that Court's oonstructionof our
crImlna1 laws.
        Other states have statutes which provide that
defendants in circumstancessuoh as the ones you set forth
are entitled to time served and good time earned under a
void sentence.  There is no such statutory law in the
State of Texas. The 0@;lecase, supra, was deoided In
1901 and the Nations case, supra, was decided in 1957.
Since that time our State Legislaturehas had more than
adequate opportunity to change the law if It felt such a
change was necessary or desirable.

                         SUMMARY
           A defendant Is not entitled to calendar
        time served on a subsequent conviction when
        the original convictionfor the same offense
        has been set aside and declared void by a
        federal court, A defendant is not entitled
        to good time earned under a conviction,when
        the sentence Is declared void by an order of
        a federal court and such defendant is re-
        turned to the State aourt In which he wa8
        originally oonvicted and is re-sentenced.


                         ,-3262-
Dr. George J. Beto, page 4 (c-677     1



                           Yours very truly,
                           WAGGONER CARR




REO/er                              Assistant Attorney General
APPROVED;
OPINION COMTTEE
W; V; Gappert, Chairman
W. 0. Shultz
John Banks
Lonnie Zwlener
Kerns Taylor

APPROVED FOR THE A'PBXNEX QENERAL
Byt T. B. Wright




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