**OFFICE OF**  **THE ATTORNEY**  **,GENERAL OF**  **TEXAS AUSTIN** 

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

Weere ln reaelpt ion from thlr departsieat. **f**ollove t

defendant aever IIthe 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 himhis time rpeat ln jail, and our judge nowdesires to do thla if ame 18poaelble. *promthe foregoing, I vould appreciate very muchyour op1nlon oa the folio-w:

### 648

Honorable JohnF. May, page 2

“(1) C&Qeuch 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~whatmaaaer 18this to be

I (I

. . . . After a rather exbAuetlve reach of the 8uthorlties, wefind no procedure **by** vhlch’the eubjeot of your iaqulry could be allowed the time spent la jell. Ia so boldi~lg, ve U’Unot uambdfti of the oral decleloae vherela auac pro tuaC orders reformlllg filial judgments 

### havebeea upheld. Bovever, it appears that la all of these cares the order eatered, uponproper application, 

### wasfor the purpose of mnklag the record *perk the truth rAthOr tbna changing or alterlag it. Your question IS uore apt1 

### aaevered by Judge Oravee la the **c&e5 of**  Rxparts Patkreoa, T Ct. 141 S.U. 

### (2d) 319, 

### vherela he llaldt of Crla. App. 1940)

‘It seems that the 

### basis of ~11 euoh povere 18that the orddra or mlaotee thereof maybe’mde to speak the truth 

### relative to the oeaurreaaee about vhlch the mlautee purport to epe8k3 t e aaa aot be .acorrectloa of what should hw?%& 

### but oaly a correction 

### to amkethe mioutee ~*vhat vail aatwlly dose et the time.” Speaking generally oa the eubjeot of the fl~llty of judmate, it maybe uld that a judgment 

### beoomeefine1 at the ead 

### of the term of court at vhlch it vae readered, end this, for the reason that the trial GoUrtirsJmvd 0% set aside ajudgment prior to the alosing of tbe term.’ 12 Teue Jur., SUC.336, p. 687; Peaav. State, 24S.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 maybe takeL Vpoaperfectioa of the appeal, jwledictlo~ of the appellate court attaahee and the trial court 1s poverlees to alter the jud eace. 12Tax. JUr., sec, 336, p. 6&np end weultlw aed-

### 649

Honorable JohnF. 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 judgmentarrested in e felony ce,ee, the eeatence shell be pronounced in the presence **of** the defendant et l ny tUDeafter the expiration of the time alloved for meking the motion for e newtrial or the motion in arrest oPjudgment.”
In 1931 the Forty-eeooad Legislature emendedthle Act giving tothe trial judge the diearetIoaery power to al**10 ”**  aredlt for ti.Qe spent la jail prior to eeatence **by** the trial court. TheForty-eeveath Legislature In 1941 again emendedthis Act end enlarged ORthis diecretioaery paver eo **tbst** the trial judge meyallow credit for time spent in jell pending appeal.

This Article aov reeds as follows:

“If a newtrial Is not granted, aor judgtreat 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 makingthe motion for Enewtriel or the motfoa 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, andhee been convicted end has appealed from said judgment end/or eentence of coavfctfoa, andvhere l eid cause bee been effirmed by the Court of Criminal Apeels, andafter receipt of the mandateby the 8lerk of the trial court, the judge 1s authorlsed to e&Win cell eeid defendant before him, end if, pendin appeal, the defendant has not madebond or entered into recogaleaace andhas remlned in jailHonoreble SohmF. May, page 4

pending the time of such appeal, said trial judge lllaythen lo hla discretion re-renteace the defendant, andmaysubtract from the original eentence pronounced uponthe 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 coavlctlon Andsentence In felony oases Lawhich 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. Thedealsions are frlrly uniform thAt vhere, As here, the defendant is committed to the pealtentiary to begin execution of his eentenae the trlel court loses all jurladlctloa. Thetrial judge havlag falled or refused to allov credit es provIUed~~yCt~getstute At tha proper time, could not nowdo so. section 1589. . . ., Orlmlael T.w,
Very truly your
ATTORNRX 0RKSlA.LOFTw

w /L?. M 04

Ii. T BobDow7.

. Assistant HTBD:db