my 5. 1966 

Dr. George J. Beto Opinion No. c-677 

Director 

Texas Department of 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 conviction for 

the same offense and 

Dear Dr. Beto: related question. 

You have sent two letters requesting an opinion of 

this office, both letters being dated February 14, 1966. 

In your first letter you ask two questions, First you ask 

if a defendant, on a subsequent conviction for the same 

offense, is entitled to calendar time served on the original conviction when the original conviction has been set 

aside and declared void 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 convicted of 

murder-under a void indictment, who had served 17 years 

under the void sentence and was released by habeas corpus, 

was not entitled to have his time served under the void 

conviction deducted from a sentence imposed after a subseququ;t conviction for the same offense under a valid lndict- 

. 

The Ogle case has been cited as authority numerous 

times in Texas as well as several other jurisdictions. 'Ke 

Texas Court cited it as authority as recently as 1957 in the 

case Ex parte M. J. Nations, 301 S.W.2d 675, (Tex.Crlm.1957). 

In your second letter you ask if a defendant is entitled to good time earned under a sentence declared void 

by an order of a federal court when such defendant is returned to the state court in which he was originally convicted and is re-sentenced, said re-sentence being dated 

back to begin at the same time the void sentence began. 

-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 sentenoe by vlrtue of which he was confined was 

void because his trial counsel was not present at the time 

he was sentenced. Ihe Court, in its opinion, stated: 

"Relator was sentenced on 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 sentence for more than 

11 years and 6 months. 

"If this Court were to grant the writ, 

we would not order relator disaharged, as 

he prays, but would order him returned to 

Brown County for re-sentencing and relator 

would lose the credit which he has earned. 

Where a pfisoner secures hts release from 

oonfinement under 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 Marshall v. 

State, 73 Tex.Cr.R. 531, 166 S.W. 722, L. 

R.A. 1919, 526." 

The United States Court of Appeals for the Fifth 

Circuit has recently waved 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 

should be considered by the appellant and 

the oounsel who will represent him upon 

remand. We express no opinion on whether 

It would be a denial of due proaess for the 

State to relncarcerate Edge for the same offense, if he is sucoeasful in obtaining 

habeas corpus relief, without any oredit 

for the twelve years he has already served. 

The spectre of Edge’s being subjected to as 

much as twenty more years of prison is such, 

however, that we feel aonstrained expressly 

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-is in order. Edge 

has already served over twelve years of a 

fifteen year sentence. It has not yet been 

held, to our knowledge, that the State could 

be precluded from retrying him on the manslaughter charge or from refusing to credit 

his twelve-yearts service against any subsequent sentence which 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 subsequent sentenoe which 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 criminal appellate court in the State of Texas. 

This office is bound by that Court's oonstruction of our 

crImlna1 laws. 

Other states have statutes which provide that 

defendants in 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 statutory law 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 opportunity to change the law if It felt such a 

change was necessary or desirable. 

SUMMARY 

A defendant Is not entitled to calendar 

time served on a subsequent conviction when 

the original conviction for the same offense 

has been set aside and declared void by a 

federal court, A defendant is not entitled 

to good time earned under a conviction, when 

the sentence Is declared void by an order of 

a federal court and such defendant is returned to the State aourt In which he wa8 

originally oonvicted and 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 

Assistant Attorney General 

APPROVED FOR THE A'PBXNEX QENERAL 

Byt T. B. Wright 

-3263-