Honorable Marvin R. Brown, Jr. 

Criminal District Attorney 

Fort Worth, Texas 

Dear Sir: Attention: Austin F. Anderson 

Opinion No. 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 Criminal District 

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 suspended during the defendant's good T‘- 

behavior. On the same day, said defendant was 

released upon his own recognizance. 

"Thereafter, on the 14th day March, 1939, 

and while said suspended sentence was still 

in effect, said defendant was convicted in the 

United States District Court for the Northern 

District of Texas, Fort Worth Division, Fn 

cause number 7221, criminal, under the name of 

George Homer Dodd upon his plea of guilty entered therein on the 14th day of March, 1939, to 

certain charges in an Indictment returned in 

said cause charging violation of the United 

States Code, Title 12, section 588-b, In which 

judgment of the court was that said defendant be 

imprIsoned in an InstItutlon of the penitentiary 

type for thirteen months. George Romer Dodd, 

said defendant in both of the above causes, was 

delivered to th; warden of the United States 

Penitentiary at 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 of 
Honorable Marvin H. Brown, Jr. - page 2 o-1936 

"On the 24th day of March, 1939, there was 

issued out of the Criminal District Court of 

Tarrant County, Texas, In said cause nuniber 

40132, an alias caplas ordering the body of 

sala Homer Dodd to be bro&befbre the Ronorable District Court In and f'or said Tarrant 

County for the purpose of having a sentence 

pronounced upon the original judgment of conviction In said cause." 

It is further made to appear that the alias capias was 

not served and the said Homer Dodd was not sentenced by 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 propounded by 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 sentence and sentence defendant to serve 

the tinie for which he received a suspended sentence, where he 

was again convicted of a felony during the period of his suspended sentence. 

We do not regard the above question to be an open one 

In the State! The Court of Criminal Appeals 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 the defendant 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 statutory authority, one of 

the inherent powers 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 

statute and 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 subsequently convicted, be 

released from the suspended sentence by an order 

of the court. Likewise, if within the period 

of his conviction under a suspended sentence he 

Is again convicted of a felony, the court has 
Honorable Marvin R. Brown, Jr. - page 3 o -1936 

authority to recall the suspended sentence and 

make the judgment final. 

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 sentence has expired, it Is not within 

the power of the court to recall the suspension 

and make the judgment final. This was held in 

the case of Rx parte Coots, 85 Tex. Cr. R. 334, 

212 S.W. 173. So far as we are aware, there 

are no other limitations upon 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.was within the jurisdiction of the 

trial court." 

It Is doubtless true that this holding of Judge Morrow 

was not absolutely necessary 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 

sentenced during the term the sentence was suspended on the 

first conviction. Nevertheless, we cannot agree that the holding was under such circumstances as to render It purely dicta. 

It appears that Judge Calhoun, a Commissioner of the court, 

had written 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 opinion was 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 suspension had expired, and reached the conclusion 

that the power was lost after the term of the suspended sentence had expired. The court having expressly passed 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 questlon was not necessary to the decision of 

the Railway Company v. Jarvis, and that the opinion 

in that case is not authority upon the issue as now 

presented. It 1s true that the case then before the 

court might have been disposed of without 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 presented 
Honorable Marvin B. Brown, Jr., - page 4 o-1936 

which muht be emitted in a final determination 

of the case, but that does not affect the weight 

of the opinion as authority. We follow the case 

of Railway Company v. Jarvis, because of its authoritative character, and because we unquallfiedly approve of the conclusion reached by the court 

upon this question." 

Upon the facts submitted by you, and the foregoing 

authorities , you are advised that Fn the opinion of this 

department the court would not now have the power to sentence 

the defendant. 

Very truly yours 

ATTORNEYGENERAL OF TEXAS 

By s/Grover Sellers 

Grover Sellers 

Assistant 

GS -RR-WC 

APPROVED MAR 5, 1940 

s/Gerald C. Mann 

ATTORNEYGENERAL OF TEXAS -._ 

APPROVED OPINION COMMITTEE BY s/BWB CRAIRMABI