OFFICE OF THE ATTORNEY GENERAL OF TEX 

AUSTIN 

GEIALO C. MANN i” 

li-” ..“WL dprU 16)* Is38 

lionorahle 0. J. 6. Ellingsm 

General iianapr, 

T8xas Prison System 

ttuntsville, Texas 

Dear SIX'S 

8Md8f- 

~fopsldfslrurrl 

dsff8rtmii fmm that 

&2#3rati0n to 

have s rul%ng f'mm 98~ 

rrisoa, our #aBsS?T* was eman system an Borcnber 36, 

hillslnl f.wmty* lih8r8 Be h8a 

itttW#WrretrOf~~8Ud 

ft 8V8r vwty D8lfzw8# 8aase # 

and #9'73, end assssssd threetwo caas& and twb-year tmm 

in two oasa% all aentem88s made oozmurmmk 

*Later a five-y85x ausgended Benferrse, 

which had been amesfmd against M8rrWm by 

t&e District c?ow-t of Elutehinson Caauty DsbWiP 

w, ss*, one aa8e et burglary tmd8r am86 #%dur 

sas lwvacml* The f%nal sentems tmd8r 8euse 

$926 eontatie the iallsaing elsusm 
Bona 00 J. So Dlllugson, 4Wu l3g, '1938, Page m 

"It further appearing that there has 

been one year aerved on said sentence up to 

this day; and the said Bill Morrison shall 

be tonfined in said penitentiary for not 

less than four yeaxs, being the unexpired 

portion of the ori&m.l judDmnt and sentence 

herelu rendered..., * 

Whereas, Article 773, Code of 3rlrimi.ua.l 

Procedure states that suspended sentcnoee, 

when revokf3d and made final, shall be aunulatire sentences. 

"2 Denial Ollvares, our #303pl, was 

oommitted to the Prison Bystan on Harsh 16, 

1930, from Hidalgo County There he had been 

convicted in one oase of burglary, cause 

#a231, and assessed a firs-year term. 

*Also, a five-year suspended sentence; 

which had been aesesssd against Oliraree by 

the Distriot Court of Hldalgo County, Ootober 

7, 1938, one oafae of night-time burglary, under cause #62lD, was revoked. The final sentence under oeuse #62lD, contains the folloring clause: 

"*It is therefore ooneidered, ordered, adJudged and deareed by the oourt-that the sentenae 

heretofore Imposed upon the eald Daniel Dlivares 

In this oause become operative, and the suspenslon thereof be vacated, and such eentenoe shall 

run oonourrent~y- with the said sentence in cause 

#a201 in this court.* 

aSlnoe eaoh of these subjeote have suspended sentencee running conourrently with the 

other terms, and ain- Bill Horrieon*s suspended sentence was also dated back one year, 

we would like to lmow whether these Gases 

should be so entered upon our reoords?* 

We know of no reason why the oases inquired about in 

your letter should not be entered Upon the reoords of the Texa~ Prison System, In aooordanoe with the terms and provisions 

of the judgpient of sentenoe pronounced by the court in eaoh 

case, unless the same should be void because not being l ounulatire* with the punishment of the.subsequent ConriotSon, as 

required by Article 773, Code of Criminal Prooedure, rather 

than *concurrent*. 
non. 0. 5.-s. w3ling11on, AprU l9, 1930, Page 3 

Xt is true Artiole 773, Code of Crdmdnal Proaedurg provides for the revooetlon of a suspended sentence 

and states that when a sentenoe 1s revoked *the court 

shall pronounoe sentence upon fh4 original judpsent of 

oonvlction and shall cumulate the punishment of the first 

rith the punlaikeent of any subsequent conviction or conriotIons.@ The failure, however, on the pert of the 

oourt to comply with the terms and pro~islone of this 

statutqes was done in the cases in questlon,and sentence the defendants to the penitentiary for a tew of 

year8 different from that preeoribed by statute does not 

render the ludgplent of sentence void. The judgnente of 

sentence in question may have been erroneous in this respeot, but It doe8 not follow they were, for that reason, 

void. 

The Supreme Court of Texae In the oaee of Clayton Y. ihart, 88 Tex. 5OS, 32 8. IL 077, In an opinion by 

Justloe Dennan, statedr 

suhen 8 court of general $Irlsdl~~tlon# 

In the exerolse of Its ordinary judicial 

functions, renders a fudgnent In a cause 

ln rhioh it has jurisdiotion over the person of the defendant and the subjeat metter of the oontroversy, such judgment Is 

never void, no matter how erroneous it may 

appear, from the face of the records or 

otherwise, to b&* 

f(ad the aourt in earth of the oases In question complied with Article 773, Code of Criminal Prooedure, and OIIIIUleted the punishment of the first oonvlctlon with that of 

the seoond, It would heve added greatly to the punishment of 

eeoh conviction. Therefore, we think the effeot of the eotion of the courts In making the sentenoe in the first comictIon run oonourrent with the sentence in the subsequent conviction was to sentence eaah of the said conoiote for a shorter term and give each of them less punishment than the law 

presoribes. 

In this oonneotlon we quote the rule as stated in 

Corpus Juris, Vol. 33, page 621 

"A sentenoe for a shorter term or less 

punishment than the law preeorlboe for the 

offense for whioh the prisoner 88s convioted 

is erroneous but not po%d, and affords no 

grounds for discharge on habeas oorpus,s 
IIon. 0. J. s. )3lliugson, April Is, l939, Page 4 

We have been uuable to find any case deoided by 

our Texas dourts in which judeent of sentenoe has been 

questioned beaause of being insufflolent. Howover, we 

do find nuaerous cases decided by courts of other 

states in which the rule as above stated in Corpus 

Juris has been folloredt 

You are therefore advised that the judgment of 

sentence in the two oases mentioned in your letter are 

not void and eaoh case should be entered upon the records 

of the Texas Prison System in strict eocordance with the 

sentence pronounced by the court in each case. 

Your6 very truly 

ATTORBEP GEWERAL OFTEXAS 

!l'om D. Rowell 

Assistant