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 8uthorlties, we find no procedure by vhlch’the eubjeot of your iaqulry could be allowed the time spent la jell. Ia so boldi~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 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 Rx parts Patkreoa, T Ct. 

141 S.U. (2d) 319, vherela he llaldt 

of Crla. App. 1940) 

‘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 alter the jud 

eace. 12 Tax. JUr., 

sec, 336, p. 6&np end weultlw aed- 
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 judgment arrested in e felony ce,ee, the eeatence shell 

be pronounced in the presence of the defendant 

et l ny tUDe after the expiration of the time alloved 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 al10” 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 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 making the motion for E new triel 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, and hee been convicted end 

has appealed from said judgment end/or eentence 

of coavfctfoa, and vhere l eid cause bee been effirmed by the Court of Criminal A peels, and after 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 entered 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 defendant, and may subtract from the original eentence pronounced upon the defendant, the length 

of time the defendant haa lain la jell pending 

such appeal; provided, however, that the provlalone of this Act shell not apply efter coavlctlon 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 pealtentiary 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. 

section 1589. 

. . ., Orlmlael T.w, 

Very truly your 

ATTORNRX 0RKSlA.L OF Tw 

w /L?. M 04 

Ii. T . Bob Dow7. 

Assistant 

HTBD:db