    Honorable Vernon D. Adcock       Opinion No. C-310
    County Attorney
    Dawson County                   Re:   Authority of a sheriff to
    Iamesa, Texas                         grant commutation of time
                                          for good conduct under
                                          Article 5118(a), Vernon's
                                          Civil Statutes,  to a prls-
                                          oner incarcerated under a
                                          sentence for a felony  of-
    Dear Mr. Adcock:                      fense, and related questions.
            You request our opinion construing Article 5118(a),
    Vernon's Civil Statutes, with regard to Its application to the
    facts which you set out in your letter as follows:
                "Prisoner, on his plea of guilty, was found
i           guilty of a felony offense by the District
            Court, and sentenced to a term of years of not
            less than two (2) nor more than four (4). Said
            prisoner was not transferred to the Texas Depart-
            ment of Corrections, but was incarcerated in the
            County Jail, where he has been a trusty.  This
            arrangement was with the full approval and con-
            sent of said prisoner. On July 15, 1964, said
            prisoner had served three (3) years of his four
            (4) year sentence."
            In light of the facts as set out, you request   our
    opinion on the following questions:
I
            "(1) Does the Sheriff in charge of the County
            Jail wherein prisoner Is confined have the au-
            thority to commute the time of prisoner's sen-
            tence for good conduct under Article 5118(a),
            Vernon's Civil Statutes of the State of Texas?
            "(2) Can Prisoner make application for and re-
            ceive parole without being transferred to the
            Texas Department of Corrections?




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Honorable Vernon D. Adcock, page 2 (C-310)


        "(3) Can prisoner make application for and re-
        ceive a commutation of sentence by the Governor
        of the State of Texas, with the approval of the
        Board of Pardons and Paroles, without being trans-
        ferred to the Texas Department of Corrections?"
        In Attorney General's Opinion No. C-144, it was held
that sheriffs have the authority to award commutation of time
for good conduct, pursuant to Article 5118(a), Vernon's Civil
Statutes, to a prisoner serving in jail under a judgment im-
posing a jail sentence or a fine.
         However, this opinion is not directed to the situation
 which you have outlined, that is, a prisoner Incarcerated in
 the County Jail who is under sentence in a felony case where
 the punishment Imposed was a term of years in the state peni-
 tentiary. There Is no statutory or other authority permitting
 a prisoner under a penitentiary sentence to serve such sentence
 in the county jail; on the contrary, the county authorities
 are required to deliver such a prisoner to the Texas Prison
 System (Attorney General's Opinion No. 0-6177). Article 5118(a)
 can have no application to such a prisoner and to the instant
 situation. Therefore, while we answer your first question in
 the affirmative - a sheriff does have authority to commute the
 time of a jail sentence for good conduct under Article 5118(a) -
'his authority extends only to such prisoners who are in his cus-
 tody under sentence imposing a term to be served in jail or
 where a prisoner is laying out a fine~and not to prisoners sen-
 tenced to a term in the penitentiary.
        Your second question, "Can a prisoner make application
for and receive parole without being transferred to the Texas
Department of Corrections," is answered by the Adult Probation
and Parole Law of 1957, Article 781d of the Code of Criminal
Procedure. Section 12 of Article III of this Act refers to
the matter of paroles in the following language:
            "Sec. 12. The Board of Pardons and Paroles
        created by Article 4, Section 11 of the consti-
        tution of this state, ,shalladminister the pro-
        visi.onsof this Act respecting determinations
        of which prisoners shall be paroled from the
        Prison System of this state, the conditloxof
        such paroles, and may recommend the revocation
        of paroles by the Governor." (Emphasis added)




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Honorable Vernon D. Adcock, Page 3 (C-310)


        It is clear that only prisoners confined in the 'Prison
System of this State" are subject to the terms of the Act and
are eligible for parole. Article 6166a-1 of Vernon's Civil
Statutes chanmed the name of the Texas Prison Svstem to the Texas
Department of-Corrections.
        Accordingly, in answer to your second question, we hold
that a prisoner must be transferred to the Texas Department of
Corrections before he can make .applicatlon for and receive
parole.
        With reference to the third question which in substance
Is "Can a prisoner receive a pardon or commutation of sentence
from the Governor with the approval of the Board of Pardons and
Paroles without being transferred to the Texas Department of
Corrections," we answer such question in the affirmative.
        Section 11 of Article IV of the Constitution of Texas
gives to the Governor the power to grant reprieves and commu-
tations of punishment and pardons upon the written recommen-
dation and advice of a majority of the Board of Pardons and
Paroles under such rules and procedures~as the Legislature
may prescribe.   The Legislature has made no rule or requlre-
ment which would prevent a prisoner incarcerated in oounty jail
from receiving a commutation of sentence or a pardon or that
would require such prisoner to be transferred to the Texas
Department ,of Corrections before being eligible to receive ti
pardon or commutation.
                           SUMMARY
       1. A sheriff has authority to award commu-
       tation of time for good conduct under the au-
       thority of Article 5118(a), Vernon's Clvll
       Statutes, to a person serving time In a county
       ;;i; unE" a judgment imposing a jail sentence
                 . However, this statute has no appli-
       cation to a prisoner incarcerated in county
       jail under a sentence calling for Imprisonment
       in the penitentla,ry,and in such case the
       sheriff can&t; make any commutation of the
       sentence.
       2. A prisoner must be transferred to the Texas
       Department of Corrections before he can make
       application for parol,e.
.   .




        Honorable Vernon D. Adcock, page 4 (C-310)         :



                 3. The Governor has the power upon the recom-
                 mendation and advice of the Board of Pardons
                 and Paroles to commute the sentence of a prls-
                 oner whether he be incarcerated In a county
                 jail or in the penitentiary.
                                     Very truly   yours,
                                     HAGGONER CARR
                                     Attorney General of Texas




        LFz/ts

        APPRGVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        George Gray
        Brandon,Blckstt
        Ben Harrison
        Gordon Cass
        APPRGVED FOR TRE ATTORNEY GENERAL
        BY: Roger Tyler




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