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                            Aunnlv    11. -a
                                     March 31, 1964

                  Beto                         Opinion No. C-234
       Department of Corrections                    -..    .
       Huntsville, Texas                       He: uatlng back sentence
                                                   by trial judge and
                                                   granting discretionary
                                                    credits for jail time
                                                   under Article 768,
                                                    Vernon's Code of Crlm-
       Dear Dr. Beto:                               inal Procedure
            Your letter of March 17, 1964, requests an opinion by
       this office to answer the following question:
                "When should the sentence of Daniel V. Esparza
           begin and to what credits, If any, Is he entitled
           for time spent in jail?"
             Daniel V. Esparza was tried before a jury on the charge
       of Theft of Corporeal Personal Property over the Value of
       Fifty Dollars In Cause No. s-61266 In the 175th District
       Court of Bexar County, Texas, on November 14, 1962. The
       jury found the defendant guilty on the following day and
       assessed his punishment at confinementIn the Texas Depart-
       ment of Corrections for a period of five years. Motion for
       new trial was denied on December 14, 1962, and defendant was
       duly sentenced. Upon pronouncing formal sentence, the trial
       judge, John F. Onion, Jr., granted defendant's request for
       jail time credit under the discretionaryauthority provided
       by Article 768, Vernon's Code of Criminal Procedure, and
       dated the sentence back to July 4, 1962, which covered the
       period of time that Esparza had been confined in the County
       Jail on the charge. The defendant thereafter gave notice of
       appeal to the Court of Criminal Appeals, and his case was
       duly and properly appealed, resulting in the case being
       affirmed by the Court of Criminal Appeals and a mandate
       issued by that Court under date June 7, 1963. Daniel V.
       Esparza v. The State of Texas, 367 S.W.2d 861, (Tex.m.,
       1963).    You are concerned as to whether the effective date
       of the sentence should be July 4, 1962, or June 7, 1963.
            The real questions In this case are: If a trial judge
       exercises the authority given him under the provisions of
       Article 768, Vernon's Code of Criminal Procedure, and dates
       back the sentence, whether this dating back is rendered void
       by the perfection of appeal by the defendant In such case;
       and secondly, under the same Article when Is the defendant

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Dr. CteorgeBeto, page 2   (C-234)


entitled to jail time credits? The answers are In the
Interpretationgiven to Article 768 of Vernon's Code of
Criminal Procedure.
     Article 768 was amended In 1931 (Acts 42nd Leg., 1931,
ch. 86, p. 129), so as to provide for the first time that
trial courts have the authority to give the defendant credit
on his sentence for the time, or any part thereof, which
the defendant has spent in jail In said cause from the time
of his arrest and confinementuntil his sentenceby the
trial court. In 1941, this Article was amended (Acts 47th
Leg., 1941, ch. 139, p. 193) by adding the provision that
the trial court 1s authorized,where an appeal has been taken
and the cause affirmed by the Court of Criminal Appeals and
mandate received, to call the defendant back before him for
re-sentencingand subtract from his original sentence the
time he was confined In jail ending such appeal. Section
2 of the Amendatory Act of 19t1 repealed all conflicting
laws or parts thereof. In 1957 (Acts 55th Leg., 1957,
ch. 149, p. 330) this Article was amended to provide equal
applicationto misdemeanor cases as well as felony cases;
it thus reads:
          "Art. 768. 855, 833 Pronouncingsentence;
     time; credit for time spent in jail between arrest
     and sentence or pending appeal.
          "If a new trial 1s not granted, nor judg-
     ment arrested In felony and misdemeanorcaaea,
     the sentence shall be pronounced In the presence
     of the defendant at any time after the expiration
     of the time allowed for making the motion for a
     new trial or the motion In arrest of judgment;
     provided that in all criminal cases the judge of
     the court In which defendantwas convictedma
                                                --ii
     within his discretion,give the defendant cre   -
     It on his sentence forethe time, or any part
     thereof, which said defendant has spent in jail
     in said cause, from the time of his arrest and
     confinementuntil his sentence by the trial
     court; and provided further, that In all cases
     where the defendant has been tried for any vlo-
     lation of the laws of the State of Texas, and has
     been convicted and has avvealed from said .fudn-
     ment and/or sentence of conviction,and where-
     said cause has been affirmed by the Court of
     Criminal Appeals, and after receipt of the man-
     date by the clerk of the trial court, the judge
     is authorized to again call said defendantbefore

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Dr. George Beto, page 3   (C-234)



    him; and if, pending appeal, the defendant has not
    made bond or entered into recognizanceand has
    remained in jail pending the time of such appeal,
    said trial judge may then In his discretion re-
    sentence the defendant and may subtract,fromthe
    original sentence pronouncedupon the defendant,
    the length of time the defendant has lain in
    jail pending such appeal; provided, however,
    that the provisions of this Act shall not apply
    after convictionand sentence In felony cases
    In which bond or recognizanceis not permitted
    by law." (Emphasisadded)
     Article 775, Vernon's Code of Criminal Procedure, provides
In part that where an appeal is taken, the sentence shall
begin to run with the date of the mandate and In every case
the commitment shall so state. Article 76% does not purport
to repeal the above provision of Article 775, nor Is it In
conflict; It provides for jail time credit before sentence
and pending appeal with discretion In the trial judge.
     The trial judge In this case followed the provisions of
Article 768, Vernon's Code of Criminal Procedure, and dated
the sentence back to July 4, 1962. Defendant,, however, did
not choose to begin serving his sentence,but perfected
         His sentencewould begin June 7 1963 with credit
%"$ll    time from July 4, 1962, through'Decem6er14, 1962.
The dating back of the sentence was in effect voided by
perfection of appeal, but the jail time credit remains to
defendant'scredit. It Is our opinion that since the statute
does not specificallyprovide for dating back a sentence,
specific credit should be written into the formal sentence.
If there is an omission on the records of the trial court
to correctly reflect the acts by the trial judge, this can
be correctedunder the Nunc Pro Tune provisions of Article
772, Vernon's Code of Criminal Procedure.
     After the afflrmanceby the Court of Criminal Appeals
and receipt of the mandate by the Clerk of the trial court,
the trial judge did not exercise his further discretionary
authority to subtract from the original sentence the time
defendant spent in jail, if any, pending appeal; it Is there-
fore our opinion that defendant is not entitled to any time
spent in jail between the time of his original sentence and
the execution of the mandate from the Court of Criminal
Appeals; however, the statute does not preclude the trial
judge from lnvoklng his discretionaryauthority at this late
date to recall and re-sentencethe prisoner and grant him
credit for jail time pending appeal and mandate.

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Dr. George Beto, page 4   (C-234)


                     SUMMARY
         In the case of Daniel V. Esparza v. State of
    Texas sentence begins on June 7,,1963 but he is
    mied     to a credit for time spent in'jall from
    July 4, 1962, though December 14, 1962.
                           Very truly yours,

                           WAGGONER CARR
                           Attorney General of Texas




                               Akistant Attorney General
VT:cjp
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Ctialrman
Pat Bailey
Edward R. Moffett
George Gray
Milton Richardson
APPROVED FOR THE ATTORNEY GENERAL
By: Grady Chandler




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