Honorable Vernon D. Adcock Opinion No. C-310 

County Attorney 

Dawson County Re: Authority of a sheriff to 

Iamesa, Texas grant commutation of time 

for good conduct under 

Article 5118(a), Vernon's 

Civil Statutes, to a prlsoner incarcerated under a 

sentence for a felony ofDear Mr. Adcock: fense, and related questions. 

You request our opinion construing Article 5118(a), 

Vernon's Civil Statutes, with regard to Its application to the 

facts which you set out in your letter as follows: 

i 

I 

opinion 

"Prisoner, on his plea of guilty, was found 

guilty of a felony offense by the District 

Court, and sentenced to a term of years of not 

less than two (2) nor more than four (4). Said 

prisoner was not transferred to the Texas Department of Corrections, but was incarcerated in the 

County Jail, where he has been a trusty. This 

arrangement was with the full approval and consent of said prisoner. On July 15, 1964, said 

prisoner had served three (3) years of his four 

(4) year sentence." 

In light of the facts as set out, you request our 

on the following questions: 

"(1) Does the Sheriff in charge of the County 

Jail wherein prisoner Is confined have the authority to commute the time of prisoner's sentence for good conduct under Article 5118(a), 

Vernon's Civil Statutes of the State of Texas? 

"(2) Can Prisoner make application for and receive parole without being transferred to the 

Texas Department of Corrections? 

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Honorable Vernon D. Adcock, page 2 (C-310) 

"(3) Can prisoner make application for and receive a commutation of sentence by the Governor 

of the State of Texas, with the approval of the 

Board of Pardons and Paroles, without being transferred to the Texas Department of Corrections?" 

In Attorney General's Opinion No. C-144, it was held 

that sheriffs have the authority to award commutation of time 

for good conduct, pursuant to Article 5118(a), Vernon's Civil 

Statutes, to a prisoner serving in jail under a judgment imposing a jail sentence or a fine. 

However, this opinion is not directed to the situation 

which you have outlined, that is, a prisoner Incarcerated in 

the County Jail who is under sentence in a felony case where 

the punishment Imposed was a term of years in the state penitentiary. There Is no statutory or other authority permitting 

a prisoner under a penitentiary sentence to serve such sentence 

in the county jail; on the contrary, the county authorities 

are required to deliver such a prisoner to the Texas Prison 

System (Attorney General's Opinion No. 0-6177). Article 5118(a) 

can have no application to such a prisoner and to the instant 

situation. Therefore, while we answer your first question in 

the affirmative - a sheriff does have authority to commute the 

time of a jail sentence for good conduct under Article 5118(a) - 

'his authority extends only to such prisoners who are in his custody under sentence imposing a term to be served in jail or 

where a prisoner is laying out a fine~and not to prisoners sentenced to a term in the penitentiary. 

Your second question, "Can a prisoner make application 

for and receive parole without being transferred to the Texas 

Department of Corrections," is answered by the Adult Probation 

and Parole Law of 1957, Article 781d of the Code of Criminal 

Procedure. Section 12 of Article III of this Act refers to 

the matter of paroles in the following language: 

"Sec. 12. The Board of Pardons and Paroles 

created by Article 4, Section 11 of the constitution of this state, ,shall administer the provisi.ons of this Act respecting determinations 

of which prisoners shall be paroled from the 

Prison System of this state, the conditloxof 

such paroles, and may recommend the revocation 

of paroles by the Governor." (Emphasis added) 

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Honorable Vernon D. Adcock, Page 3 (C-310) 

It is clear that only prisoners confined in the 'Prison 

System of this State" are subject to the terms of the Act and 

are eligible for parole. Article 6166a-1 of Vernon's Civil 

Statutes chanmed the name of the Texas Prison Svstem to the Texas 

Department of-Corrections. 

Accordingly, in answer to your second question, we hold 

that a prisoner must be transferred to the Texas Department of 

Corrections before he can make .applicatlon for and receive 

parole. 

With reference to the third question which in substance 

Is "Can a prisoner receive a pardon or commutation of sentence 

from the Governor with the approval of the Board of Pardons and 

Paroles without being transferred to the Texas Department of 

Corrections," we answer such question in the affirmative. 

Section 11 of Article IV of the Constitution of Texas 

gives to the Governor the power to grant reprieves and commutations of punishment and pardons upon the written recommendation and advice of a majority of the Board of Pardons and 

Paroles under such rules and procedures~as the Legislature 

may prescribe. The Legislature has made no rule or requlrement which would prevent a prisoner incarcerated in oounty jail 

from receiving a commutation of sentence or a pardon or that 

would require such prisoner to be transferred to the Texas 

Department ,of Corrections before being eligible to receive ti 

pardon or commutation. 

SUMMARY 

1. A sheriff has authority to award commutation of time for good conduct under the authority of Article 5118(a), Vernon's Clvll 

Statutes, to a person serving time In a county 

;;i; unE" a judgment imposing a jail sentence 

. However, this statute has no application to a prisoner incarcerated in county 

jail under a sentence calling for Imprisonment 

in the penitentla,ry, and in such case the 

sheriff can&t; make any commutation of the 

sentence. 

2. A prisoner must be transferred to the Texas 

Department of Corrections before he can make 

application for parol,e. 
. . 

Honorable Vernon D. Adcock, page 4 (C-310) : 

3. The Governor has the power upon the recommendation and advice of the Board of Pardons 

and Paroles to commute the sentence of a prlsoner whether he be incarcerated In a county 

jail or in the penitentiary. 

Very truly yours, 

HAGGONER CARR 

Attorney General of Texas 

LFz/ts 

APPRGVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

George Gray 

Brandon, Blckstt 

Ben Harrison 

Gordon Cass 

APPRGVED FOR TRE ATTORNEY GENERAL 

BY: Roger Tyler 

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