            OFFICE   OF THE   ATTORNEY   ,GENERAL   OF TEXAS
                                  AUSTIN




Honorable foha F. l4ey
Dlrtrlct Attorney
81st Judicial  Dl8trlct
mrnea city,   Texao

Dear Slrr



           We ere ln reaelpt
ion from thlr departsieat.
f ollove t




                                          defendant    aever
                                         II the tins   he was

                      ut durw      the appeal, he never
                      cogrilzeace,   but 8tayed la jail.
                       the maadate fr0Pl the court of
                   le, our jud$e, through oversight,
                   enteace thla defendrat la order to
     allow him his time rpeat ln jail,     and our judge
     now desires to do thla if ame 18 poaelble.
          *prom the foregoing,  I vould appreciate         very
     much your op1nlon oa the folio-w:
                                                                            648


Honorable        John F. May, page 2



            “(1)   C&Q euch defendeat aov be alloved by           ’
      the district   judge the tlmu he has spent la jail
      prior to the tlme he entered the penitentiary?

      dom3”(2)          If   80, 1~ what maaaer 18 this   to be

                 I . . . . (I

           After a rather exbAuetlve reach     of the 8uthorl-
ties, we find no procedure by vhlch’the    eubjeot of your ia-
qulry could be allowed the time spent la jell.      Ia so bold-
i~lg, ve U’U not uambdfti   of the oral decleloae   vherela auac
pro tuaC orders reformlllg filial judgments have beea upheld.
Bovever, it appears that la all of these cares the order
eatered,  upon proper application,  was for the purpose of mnk-
lag the record *perk the truth rAthOr tbna changing or alter-
lag it.   Your question IS uore apt1 aaevered by Judge Oravee
la the c&e5 of Rx parts Patkreoa,    TCt. of Crla. App. 1940)
141 S.U. (2d) 319, vherela he llaldt

           ‘It seems that the basis of ~11 euoh povere
     18 that the orddra or mlaotee thereof may be’mde
     to speak the truth relative to the oeaurreaaee
     about vhlch the mlautee purport to epe8k3 t       e
     aaa aot be .a correctloa   of what should hw?%&
            but oaly a correction   to amke the mioutee
     ~*vhat     vail aatwlly   dose et the time.”

           Speaking generally oa the eubjeot of the fl~llty
of judmate,    it may be uld that a judgment beoomee fine1
at the ead of the term of court at vhlch it vae readered,
end this, for the reason that the trial GoUrt irsJ mvd      0%
set aside a judgment prior to the alosing of tbe term.’ 12
Teue Jur., SUC. 336, p. 687; Peaa v. State, 24 S.U. (2d)
396.
            1~ a felony case where the penalty aeeeeeed ie leee
thea death, the sentence constitutes           the flr~l  judfWat from
which en appeal may be takeL           Vpoa   perfectioa  of  the appeal,
jwledictlo~    of the appellate       court attaahee and the trial
court 1s poverlees     to sec,
                           alter 336,
                                   the p.jud6&np    end weultlw    aed-
eace.    12 Tax. JUr.,
                                                                        649



Honorable   John F. Uey, pege 3



           Article 768, V.A.C.C.P.,      prior   to the amend~ata
of’ 1931 end 1941, reed es follows:

            “If a new trial fS not granted nor the judg-
      ment arrested in e felony ce,ee, the eeatence shell
      be pronounced in the presence of the defendant
      et lny tUDe after the expiration   of the time al-
      loved for meking the motion for e new trial or
      the motion in arrest oP judgment.”

            In 1931 the Forty-eeooad   Legislature    emended thle
Act giving to the trial    judge the diearetIoaery     power   to al-
10” aredlt   for ti.Qe spent la jail prior to eeatence by the
trial court.    The Forty-eeveath   Legislature    In 1941 again
emended this Act end enlarged OR this diecretioaery          paver eo
tbst  the trial judge mey allow credit for time spent in jell
pending appeal.

            This Article   aov reeds   as follows:

             “If a new trial Is not granted, aor judg-
     treat arrested in felony c6eee, the eenteace ehell
     be pronounced la the presence of the defeadeat et
     any time after     the expiration  of the time ellowed
      for making the motion for E new triel      or the mo-
     tfoa in erreet of judgments provided that in
     all criminal cases the judge of the aourt in
     vhlch defendent wee convicted,      ray within hle
     dlsaretloa,    give the defendant credit on his
      eentence for the time, or eng part thereoi,       which
     said defendant has apeat in jail in said cause,
     from the time of his arrest end confinement until
     hi8 sentence by the trial aourt; end provided
     further thet in ell ca,eee where the defendant
     has been tried for sag violation      of the laws of
     the State of Texee, and hee been convicted end
     has appealed from said judgment end/or eentence
     of coavfctfoa,     and vhere leid cause bee been ef-
     firmed by the Court of Criminal A peels, and aft-
     er receipt    of the mandate by the 8 lerk of the
     trial court, the judge 1s authorlsed      to e&Win
     cell eeid defendant before him, end if, pendin
     appeal,    the defendant has not made bond or enter-
     ed into recogaleaace     and has remlned   in jail
Honoreble   Sohm F. May, page 4



      pending the time of such appeal, said trial         judge
      lllay then lo hla discretion   re-renteace    the de-
      fendant, and may subtract from the original         eent-
      ence pronounced upon the defendant,        the length
      of time the defendant haa lain la jell pending
      such appeal; provided,     however, that the provl-
      alone of this Act shell not apply efter coavlc-
      tlon And sentence In felony oases La which boad
      or recognIaence   Is not permitted    by law.”

           It is therefore    the opinion of this depArtmeat
that the subject of your inquiry could aot be elloved oredit
for the tw     he spent in jail prior to the time he entered
the penitentiary.     The dealsions    are frlrly     uniform thAt
vhere, As here, the defendant is committed to the pealten-
tiary to begin execution of his eentenae the trlel court
loses all jurladlctloa.     The trial    judge havlag falled or
refused to allov credit es provIUed~~yCt~getstute            At tha
proper time,   could  not now  do  so.        .   . .,  Orlmlael T.w,
section 1589.
                                                    Very truly   your
                                         ATTORNRX       0RKSlA.LOF Tw

                                         w    /L?.         M        04
                                                       Ii. T . Bob Dow7.
                                                                 Assistant
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