Dr. Ge.orge Beto 

Director 

Opinion No. C-309 

Department of Corrections Re: Whether the order of CrimlnHuntsville, Texas al District Court No. 4 of 

Harris County crediting the 

sentence of an Inmate of the 

Texas Department of Corrections under Article 768, C. 

Dear Dr. Beto: C.P. Is a valid order. 

Your letter of July 30, 1964, requesting an opinion 

by this office reads: 

"In the Criminal District Court No. 4 

of Harris County, Texas, at the November 

1963 Term, on November 18, 1963, in Cause 

No. 106979, Lawrence P. Schmideberg was 

convicted of the offense of theft and his 

punishment was assessed at three years. On 

the same day, he was sentenced for not less 

than two nor more than three years and gave 

notice of appeal, perfected his appeal, and 

appealed his case to the Court of Criminal 

Appeals,, The Court of Criminal Appeals affirmed the conviction and the date of the 

Mandate is May 1, 1964. On May~25, 1964, 

Schmldeberg was received at the Texas Department of Corrections, on commitment papers Issued in the above cause. 

'On June 17, lgf$, we received certified 

copy of an order entered by Judge A. PI. 

Krichamer on June 11, 1964, ordering that 

the above named Defendant Abe given credit 

on his sentence of the time from August 18, 

1963, to May 1, 1964, for time spent in jail 

pending appeal. 

II . e . . 

"In view of the fact that Article 768 C. 

C.P. authorizes the Court to give the Defendant credft for time spent fn jail pending 

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Dr. George Beto, page 2 (C-309) 

appealf and the'fact that the Inmate was received by the Texas Department of Corrections 

on May 25, 1964, is the order of Judge Krlchamer under date June 11, 1964, a valid credit 

on the sentence of the inmate?" 

The order of Judge A. H. Krichamer reads: 

"On this the 11th day of June, A.D. 1964, 

it being called to the attention of the court 

that the defendant in the above styled cause 

was not given credit for the time he had remained in jail pending appeal herein to the 

Court of Criminal Appeals of the State of 

Texas, August 18, 1963, to May 1, 1964, which 

has been the intention of this Court: 

"It is therefore ordered, adjudged, and 

decreed by the Court that the sentence in 

Cause 106979, The State of Texas vs. Lawrence 

P. Schmldebeag, begin as of August 18, 1963. 

"The Clerk is here ordered to attach this 

order to the original sentence and forward a 

certified copy to the authorities of the Texas 

Department of Corrections to be made a part 

of the commitment now in their hands." 

Article 768 of Vernon's Code of Criminal Procedure 

reads: 

"If a new trial is not granted, nor judgment arrested in felony cases, the sentence 

shall be pronounced In the presence of the defendant at any time after the expiration of 

the time allowed for making the motion for a 

new trial or the motion In arrest of judgment; 

"If a new trial is not granted, nor judgment arrested in felony cases, the sentence 

shall be pronounced In the presence of the defendant at any time after the expiration of 

the time allowed for making the motion for a 

new trial or the motion In arrest of judgment; 

provided that in all criminal cases the judge 

of the court in which defendant was convicted 

may,wlthin hls discretion, give the defendant 

credit on his sentence for the time, orany 

%he trail court; ana provided further, that 

'in all cases where the defendant has been 

tried for any violatlon,of the'laws of the 

State of Texas, and has bden convicted and 

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Dr. George Beto, page 3 (C-309) 

3ions of &is Act shall,not apply after conviction ana sentence In felony 

cases in which bond or recognizance Is not 

permitted by law.” (Emphasis added) 

The Honorable Arnold H. Krichamer, Judge, Criminal 

District Court No. 4 of Harris County, Texas, had advised us by 

letter that it was the intent of the Judge to grant Defendant 

credit on his sentence for jail time pending trial and sentence 

from August 1.8, 1963, to November 18, 1963, and for ail time 

pending appeal from November 18, 1963, to May 1, 196 i . 

It Is within the discretion of the trial judge in a 

proper case to: 

(1) Give the defendant credit on his sentence for 

time spent~ in jail from the time of his arrest and confinement 

until hia sentence, and further 

(2) Subtract from the original sentence the time 

lain in jail pending appeal. The statute is specific in requiring the trial judge to "again call said defendant before 

him", and then “re-sentence the defendant"' and at that time subtract from the orl.ginal sentence time lain in jail pending appeal. 

The Judge did not specifically follow the statute. 

However, he may do so at this late date. 

Under Article 768 of Vernonrs Code of Criminal Procedure, it Is within the discretion of the trial judge to give 

the defendant credit on his sentence,for the time spent in jail, 

both before and after trial. It is our opinion that If the 
Dr. George Beto, page 4 (C-309) 

trial judge will recall the defendant before him and re-sentence him he ?nay, in his discretion, provide -therein that the 

defendant be given ,credlt for time spent in jail. 

The Order cif.'Crlmlnal District Court 

No. 4 of Harris County, Texas, crediting 

the sentence of an Inmate of the Texas 

De artment of Corrections under Article 

76g,~ C.C.P~., is not a valid order. However, the judge may recall the defendant 

and re-sentence him and therein nlve the 

defendant credit on his sentence-for the 

time he spent in jail. 

Very truly yours, 

WAGGONER CARR 

Attorney General of Texas 

VFr/dt/br 

APPROVED: 

OPINION COM&UT'PEE 

W. V. Geppert, ChalIlnan 

Robert Smith 

mdy Coleman 

Roy Johnson 

Bill Allen 

APPROVED FORTHE ATTORNEX GENERAL 

By: Roger Tyler 

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