OFFICE OF THE ATTORNEY GENERAL OF **TEX AUSTIN** 

**GEIALO C.**  **MANN i** **” li-** **”**

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lionorahle0. J. 6. Ellingsm General **iianapr,** T8xas Prison System ttuntsville,Texas
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### 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-tof ElutehinsonCaauty DsbWiP w, ss*, one **aa8e** et burglary tmd8r am86 #%dur sas lwvacml* The f%nal sentems tmd8r 8euse $926 eontatie the iallsaing elsusmBona 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 revokf3dandmade 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the Distriot Court of **Hldalgo** County, **Ootober** 7, 1938, one oafaeof night-time **burglary,** under cause #62lD, was revoked.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 

### eaohof 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 **Tex** a~ Prison System, In aooordanoe with the terms and provisions of the judgpientof sentenoe pronounced by the court in eaoh case, unless the same should be void because not being lounulatire* with the punishment of the.subsequent ConriotSon, as required by Article 773, Code of Criminal Prooedure, rather than *concurrent*.non. 0. 

### 5.-s. w3ling11on,

### AprUl9, 1930, Page 3

Xt is true Artiole 773, Code of Crdmdnal Proaed**urg** 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 punlaikeentof any subsequent conviction or conriotIons.@ The failure, however, on the pert of the oourt to comply with the 

### termsand 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 questionmay 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 theperson of the defendant and the subjeat metter of the oontroversy, such judgment Is never void, no matter how erroneous itmay appear, from the face of the records or otherwise, tob&* f(adthe aourt in earthof the oases In question complied with Article 773, Code of Criminal Prooedure, and OIIIIUleted thepunishment 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**

### havebeen uuable to find any casedeoided**by** 

### our Texasdourtsinwhich judeent of sentenoehasbeen questioned 

### beaause **of** 

### being insufflolent. Howover,we do findnuaerouscasesdecidedby courtsof other states inwhich theruleas above stated inCorpus Juris hasbeenfolloredt

You are thereforeadvised that the judgmentof sentencein the twooasesmentioned inyour letter are not void and eaohcase shouldbe enteredupon therecords of the TexasPrison Systemin stricteocordancewith the sentencepronouncedby the court in each case.

Your6 very truly
ATTORBEPGEWERALOFTEXAS

!l'om D. Rowell Assistant