     OFFViE     OF THE ATTORNEY            GENERAL OF +WS
                                  AUSTIN




Honorable 0. 3. S. EllIni33on.
General Umager, !&mm Prison 8ystem
Huntsville,     Texas            .~
                                                                      ~._.
‘Dear Sirr                               OptiLoti No. O-3720
                                      ~. Rer Cumulative or obncurrent
                                              sentence c’should Jack
                                              Sullivan~s sentence read
                                              37 gears or 20 years?        .-
            ‘Fhia letter is In &ply to r&r 0plnioiI                request    6;
recent   date from whloh we quotx the follovlngr
              ‘bar     records   reveal    that   on January 25,      ’1 1
    ~ig33, in        wf30   x0.  2239, in the District Court
      of Hale        County, Sack Sul2iva1xvaa oonvioted of
      the offense   of Robbery with Firearms ,~ and on
      February       15 was sentenced
                                   bg said oourt to
      eerve not, less than five nor more t-han tventy
      years in the penitentiary.     Theretiter,    on
      March 21, 1933, in Cause ITo. 1717 in the Dls-
      trlct  Court OS Lubbock County, Sullivan wa?
      oonvlcted of the offense of RobberJi with
      Firearms, and was sentenced by said court                          .’
      to serve not less i5han five nor more than
      seventeen years In the penitentiary,       and that
      this sentence Is to be cumulative of a~ other                                .
      sent.ence that the defendant has or may have ln
      themfuture, during the tine of this ssntenCer
             “8ull~~van appealed this platter ionvLation
      to the Court of Criminal Appeals and F?date
      was issued Ootober 27, 1933, upholdiqg tti’oon-
      viction   but reforming his sentence to show ‘Not
      lose than five nor more than seventeen years’.
            ‘In viev Of the convictions  and sentences
      outlined above, ve are inclined   to believe.
      Jack Sullivan hao a total sentence of 37 gears
               . .
              . .
                                                                      .-
                                                                           520
I[joorEb2ii 0;. j;. &. &Illngson,~   Page. 2


     ~$rison~   <and vu shon euah on him reoord      ia;
     the record offloe.                                       . ‘

           “tie. would sincerely   appreciate   your .’
     giving us the b6B6fit      of your  opinion ia     .~,            .
     thle matter, advising vhether Su2livan~s
     sentence should read 37 yeare as ve have it,>
     or 20 yeaxe as contended by him. ”

             You also enoloeed copies of the eentenoes.from   Hale-
a    Lubbock Counties,    confirming the statement made in your
letter,   copied above..   In tine Lubbock County sentence appeara
the fol2oving     order*.                 ~1.
                                  ~
             ‘This a’entenoe~ la to be cumu2at~ve~ to
      any other sentence that the defendant has
      or may have in the Suture,.durIng      the time                      .
      0f'this.sentence.I'
           We find that both cases hereti wSerred.to       were'ap--
pealM by Su22lva.n to the Court of Crlmlnal Appeals, ‘the Hale
County conviction    being af3Xrmed 3.n an opinion printed In 61 S..
Y. (2d) 1118 vhile the Lubbock County ease is reported ia I.24
Tex. Cr. .R. 1/35,, 63 S..W.. (26) 704.  FPom ‘se court ‘8. 0plllLon
in the latter   oase ve quote*

           'we Slnd in the reaord no statement of
     facts hop oomplaint 0r any matter of prooedum,.
     except that in his brief appallant vigorously.
     urges that the .court vas in error in a part.
     of hle senteke,    pointed out in the brief..  Wu~
     are In accord vlth appellant’s   contention .that.
     aaid part of the sentence was erroneous, but
gonorable 0. Y, 8. ElUllg~~,    Page 3
            I : ‘~




           “The judgment will be affilned   with the
    sentence reformed as above statedi”     (Emphasis
    ours.)
           As vi11 be noted by readin@,the       underlined laUgU&ge,
tti effect of the opinion      Is to vitiate   and rendor wholly in-
effective the attempt of the trial        court to .make the Lubbock
&ntp sentence cumulative with any other, including,           of COLWBB,
Ihe iirde Cm&y Sentence.        Befng void, the quoted clause must be
rzgletely   disregarded,    and the sentence from Lubbock County
r:tia as though no mention was made therein of w            other con-
rmiona. And, St is well settled that where the trial court
CMI not order ln Lta judpent         that two or more sentences in dlf-
:arent prooocutions    shall’be   cumulative,   the terms of lmprlson-
mat run concurrently,       See Rx parte Davis, 71 Ter. Cr. R. 538,
IA 3’. Ii. 459.

           In view of the above, we must respeotfully   advise you’
at the prisoner §ullivac     is correct, and your reoords should
k Changed to provide for hla dFscharge after he baa completed
t*+at). ye&r’s imprisonment, with due allowance made for overttie
u commutation earned, if any.

                                             ioure   very truly
