Honorable Marvin R. Brown, Jr.

CriminalDistrict Attorney Fort Worth, Texas

Dear Sir: Attention: Austin F. Anderson OpinionNo. o-1936 Re: Suspended Sentence Law

We are in receipt of your letter of February seeking this department's opinion upon the following facts,which are taken from your letter:

"On the 28th day of October, 1937,Homer Dodd was convIcted in the CriminalDistrict Court of Tarrant County, Texas, in cause number 40132 for the offense of burglary upon his plea of guilty and was given a sentence of two years in the penitentiary,which was by the court suspendedduring the defendant's goodT‘- behavior. On the sameday, said defendant was released upon his own recognizance.
"Thereafter,on the 14thday March, 1939, and while said suspended sentencewas still in effect, saiddefendant was convicted in the United StatesDistrict Court for the Northern District of Texas, Fort Worth Division, Fn
cause number 7221, criminal, under the name of George HomerDodd upon his plea of guilty entered therein on the 14th day of March, 1939, to certain charges in an Indictment returned in said cause chargingviolation of the United States Code, Title 12, section 588-b, Inwhich judgment of the courtwas that said defendant be imprIsoned in an InstItutlon of the penitentiary type for thirteenmonths. George Romer Dodd, saiddefendant in both of the above causes,was delivered to th;warden of the United States Penitentiaryat Leavenworth,Kansas. by J. R. WrFght, United States Marshal for the Northern District of Texas, on the 27th day of March, 1939,where he is still detained under said sentence. 3, 1940, state ofHonorable MarvinH. Brown, Jr. - page 2 o-1936

"On the 24th day of March, 1939, therewas issued out of the CriminalDistrict Court of Tarrant County, Texas, In said causenuniber 40132,an alias caplas ordering the body of salaHomerDodd to be bro&befbre theRonorableDistrict Court In and f'orsaid Tarrant County for the purpose of having a sentence pronouncedupon the original judgmentof conviction In said cause."

It is furthermade to appear that the alias capias was not servedand the saidHomerDodd was not sentencedby the court on his original convl.ctlon durfng the time assessed as.~ punishment in the case, and for which punlshment he received
a suspended sentence.

The question propoundedby you to this department is whether or not the State court has the power, after the explratlon of the time assessed as punishment in that court, to revoke the suspended sentenceand sentencedefendant to serve the tinie

for which he received a suspended sentence,where he
was again convicted of a felonyduring the period of his suspended sentence.

We do not regard the above question to be an open one In the State! The Court of CriminalAppeals has passed upon the question In the case of Clare v. State, 54 84. (2) 127. The court in this case reached the conclusion that the trial court does not have the power, after the suspended term has ended, to revoke the suspended sentence, and sentence thedefendant to serve the sentence Fn the penitentiary. We quote from Chief Justice Morrowts opinion Ln the above case:

"It is understood that the suspension of the sentence of one convicted of crime is not, in the absence of statutoryauthority, one of the inherentpowers of the trial judge. See State of Utah v. Zolantakls, 70 Utah, 296, 259 P. 1044, 54 A.L.R. 1463, and authorities cited in notes on page 1471 of 54 A.L.R.

"In this state the subject is covered by statuteand limited thereby. That Is to say, that the accused; at any time after the term of his covictlon has expired,may, upon showing that he has not been subsequentlyconvicted,be released from the suspended sentenceby an order of the court. Likewise, ifwithin the period of his conviction under a suspended sentence he Is again convicted of a felony, the court hasHonorable Marvin R. Brown, Jr. -page 3 o-1936

authority to recall the suspended sentenceand make the judgmentfinal. 

### 780, C.C.P. Seearticles 779 and

The time within which.the court may act is limited only by the duration of the sentence. That is to say, after the time for which one is convicted and placed under a suspended sentencehas expired, it Is not within the power of the court to recall the suspension and make the judgment final. Thiswas held in the case ofRx parte Coots, 85 Tex. Cr. R. 334, 212 S.W. 173. So far as we are aware, there
are no other limitationsupon the right of the court to recall the sentence. In the present Instance, the recall of the suspended sentence
was within the duration of the conviction,and therefore.waswithin the jurisdictionof the trial court."

It Isdoubtless true that this holding of Judge Morrow
was not absolutelynecessary to a disposltlon of this case, since the defendant there had been convLcted of a second felony and his original suspended sentence forfeited, and defendant sentencedduring the term the sentencewas suspended on the first conviction. Nevertheless,we cannot agree that the holdingwas under such circumstancesas to render It purely dicta. It appears that Judge Calhoun, a Commissioner of the court, hadwritten the original opinion,and had held that the court had the power during the term of the suspended sentence to sentence the defendant,where he was again convicted"upon another felony during the term of the suspended sentence. Judge Morrow's opinionwas delivered upon motion for rehearing and takes occasion to discuss the power of the court to sentence one under the suspended sentence statute after the term of such suspensionhad expired, and reached the conclusion that the powerwas lost after the term of the suspended sentence had expired. The court having expresslypassed upon this question,we think it is governed by the rule Fn the case of State v. O'Connor, 73 S.W. 1041, by the Supreme Court, in which Judge Brown had this to say:

I'* l * It is claimed that a determination of the questlonwas not necessary to the decision of theRailway Companyv. Jarvis, and that the opinion in that case is not authority upon the issueas now presented. It 1s true that the case then before the court might have been disposed ofwithout passing upon the validity of the judgment,but the issue
arose upon the facts, and was presented to and decided by the court. It is frequently the case that
a court discusses and decides questions presentedHonorable Marvin B. Brown, Jr., -page 4 o-1936

which muht be emitted ina finaldetermination of the case,but that does not affect theweight of the opinionas authority. We follow the case of Railway Companyv. Jarvis, because of itsauthoritativecharacter,and becausewe unquallfiedly approve of the conclusionreached by the court upon this question."

Upon the facts submittedby you, and the foregoing authorities
,you are advised that Fn the opinion of this department the courtwould not now have the power to sentence the defendant.

Very truly yours

ATTORNEYGENERAL OF TEXAS

By s/GroverSellers Grover Sellers Assistant

GS-RR-WC

APPROVEDMAR 5, 1940 s/GeraldC. Mann ATTORNEYGENERAL OF TEXAS -._

APPROVED OPINION COMMITTEEBY s/BWB CRAIRMABI