## my 5. 

## 1966

Dr. George J. Beto Opinion No. c-677 Director Texas Departmentof Corrections Re: When an original conHuntsville,Texas vlction is declared void by a federal court, is the defendant entitled to calendar time served on the original conviction,on a subsequent convictionfor the same offense and Dear Dr. Beto: related question.

You have sent two letters requestingan opinion of this office, both lettersbeing dated February 14, 1966. In your first letteryou ask two questions, First you ask if a defendant,on a subsequentconvictionfor the same offense, is entitledto calendar time served on the original convictionwhen the original convictionhas been set aside and declaredvoid by a federal court. Next you ask, if the answer to your first question Is In the affirmative, if the defendant is entitled to good time earned on the first conviction.

In the aase of Ogle v. State, 63 S.W. lOCg, (Tex. Crim.lqOl),the court held that an appellant convictedof murder-undera void indictment,who had served 17 years under the void sentence and was releasedby habeas corpus, was not entitledto have his time served under the void convictiondeducted from a sentence imposed after a subseququ;t convictionfor the same offenseunder a valid lndict-

. The Ogle case has been cited as authoritynumerous times in Texas as well as several other jurisdictions. 'Ke Texas Court cited it as authorityas recentlyas 1957 in the
case Ex parte M. J. Nations, 301 S.W.2d 675, (Tex.Crlm.1957).

In your second letteryou ask if a defendant is entitled to good time earned under a sentencedeclaredvoid by an order of a federal court when such defendant is returned to the state court in which he was originallyconvicted and is re-sentenced,said re-sentence being dated back to begin at the same time the void sentencebegan.

-3260-Dr. George J. Beto, page 2 (C-677 )

In the Nations case, supra, relator sought his release from coiif?%i%nt by writ of habeas oorpus alleging that the sentenoeby vlrtue of which he was confinedwas void because his trial counselwas not present at the time he was sentenced. Ihe Court, in its opinion, stated:

"Relatorwas sentencedon April 5, 1950, to not less than two nor more than 25 years for the offense of assault with intent to rape,
"Relatorts

prison record shows that he has credit on such sentencefor more than 11 years and 6 months.

"If this Court were to grant the writ,
we would not order relatordisaharged,as he prays, but would order him returned to Brown County for re-sentencing and relator would lose the creditwhich he has earned. Where a pfisoner secureshts release from oonfinementunder a void sentence,he may not claim credit for the tlme he has served under such sentence. Ogle v. State, 43 Tex. Cr.R. 219, 63 S.W. 1009, and Marshallv. State, 73 Tex.Cr.R. 531, 166 S.W. 722, L. R.A. 1919, 526."

The United States Court of Appeals for the Fifth Circuithas recentlywaved a warning flag in circumstanaes such as this. In the case of Ed e v, Wainwright,347 F.2d 190, (1965) at page 194, the tour --% said:
“The question Is a knotty one which shouldbe consideredby the appellantand the oounselwho will representhim upon remand. We expressno opinion on whether It would be a denial of due proaess for the State to relncarcerate Edge for the same offense, if he is sucoeasfulin obtaining habeas corpus relief,without any oredit for the twelveyears he has already served. The spectre of Edge’s being subjectedto as much as twenty more years of prison is such, however, that we feel aonstrainedexpressly to allude to the problem."

However, that same oourt, in the same case, at page 193, said: -3261-Dr. George J. Beto, page 3 (C-677 )

"One more observation-isin order. Edge has already served over twelveyears of a fifteenyear sentence. It has not yet been held, to our knowledge,that the State could be precludedfrom retrying him on the manslaughtercharge or from refusing to credit his twelve-yearts service against any subsequent sentencewhich might be Imposed upon him."
Like the Fifth Circuit Court of Appeals, this office knows of no holding that would preclude the State from retrying a defendant for the same offense or from refusing to credit him with the time he has served under a void sentence, against any subsequentsentenoewhich might be imposed upon him.

The 0 le case,-ksupra, and the Nations case, supra; were both dec ed by the Court of Crimwpeals, the highest criminalappellate court in the State of Texas. This office is bound by that Court's oonstructionof our crImlna1 laws.

Other states have statuteswhich provide that defendantsin circumstances suoh as the ones you set forth
are entitled to time served and good time earned under a void sentence. There is no such statutorylaw in the State of Texas. The 0@;le case, supra, was deoided In 1901 and the Nations case, supra, was decided in 1957. Since that time our State Legislature has had more than adequate opportunityto change the law if It felt such a changewas necessaryor desirable.

SUMMARY

A defendant Is not entitled to calendar time served on a subsequentconvictionwhen the original convictionfor the same offense has been set aside and declaredvoid by a federal court, A defendant is not entitled to good time earned under a conviction, when the sentenceIs declaredvoid by an order of
a federal court and such defendantis returned to the State aourt In which he wa8 originallyoonvictedand is re-sentenced.

,-3262-Dr. George J. Beto, page 4 (c-677 1

REO/er

APPROVED;

OPINION COMTTEE W; V; Gappert, Chairman W. 0. Shultz John Banks Lonnie Zwlener Kerns Taylor Yours very truly,

WAGGONER CARR

AssistantAttorney General

APPROVED FOR THE A'PBXNEX QENERAL Byt T. B. Wright

-3263-