HonorableVernon D. Adcock OpinionNo. 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 incarceratedunder a sentence for a felony ofDear Mr. Adcock: fense, and related questions.

You requestour 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 prisonerhad served three (3)years of his four **(4)** year sentence."
In light of the facts as set out, you request **our** on the followingquestions: "(1) Does the Sheriff in charge of the County Jail wherein prisoner Is confinedhave 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 Prisonermake application for and receive parole withoutbeing transferred to the Texas Department of Corrections?

**-1478-**HonorableVernon D. Adcock,page 2 (C-310)

"(3) Can prisonermake application for and receive a commutationof sentenceby the Governor of the State of Texas, with the approval of the Board of Pardonsand Paroles,withoutbeing transferred to the Texas Department of Corrections?"
In AttorneyGeneral's OpinionNo. C-144, it was held that sheriffshave the authority to award commutationof 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 whichyou have outlined, that is,a prisoner Incarcerated in the County Jail who is under sentence in a felony casewhere the punishment Imposedwas a term of years in the state penitentiary. There Is no statutoryor other authority permitting a prisoner under a penitentiarysentenceto serve such sentence in the county jail; on the contrary,the countyauthorities are required to deliver such a prisoner to the Texas Prison System (AttorneyGeneral's OpinionNo. 0-6177). Article **5118(a)** canhave no application to such a prisonerand to the instant situation. Therefore,while we answeryour first question in the affirmative - a sheriffdoeshave authority to commute the time of a jail sentence for good conductunder Article 5118(a) - 'hisauthority extends only to suchprisoners who are in his custody under sentence imposinga term to be served in jail or where a prisoner is laying out a fine~andnot to prisonerssentenced to a term in the penitentiary.

Your second question, "Cana prisonermake application for and receive parole withoutbeing transferred to the Texas Department of Corrections," is answeredby 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 Pardonsand Paroles createdby Article 4, Section 11 of the constitution of this state, ,shall administer the provisi.ons

of thisAct respecting determinations of which prisoners shallbe paroled from the Prison System of this state, the conditloxof such paroles,and may recommend the revocation of parolesby the Governor." (Emphasisadded)

-1479-HonorableVernon 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 Correctionsbefore he canmake .applicatlonfor 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 Paroleswithout 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 recommendationand advice of a majority of the Board of Pardons and Parolesunder such rules and procedures~as the Legislature **may** prescribe. The Legislaturehas made no rule or requlrementwhich would prevent a prisoner incarcerated inoounty jail fromreceiving a commutation of sentence or a pardon or that wouldrequire such prisoner to be transferred to the Texas Department ,ofCorrectionsbefore 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 imposinga jail sentence

. However, this statutehas 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.. .

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

3. The Governorhas the power upon the recommendation and advice of the Board of Pardons and Paroles to commute the sentence of a prlsoner whetherhe be incarceratedIn a county jail or in the penitentiary. Very truly yours, HAGGONER CARR AttorneyGeneral of Texas

LFz/ts APPRGVED:
OPINION COMMITTEE
W.V. Geppert, Chairman George Gray Brandon,

Blckstt Ben Harrison Gordon Cass
APPRGVED FOR TRE ATTORNEYGENERAL BY: Roger Tyler

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