Dr. Ge.orge Beto Director OpinionNo. C-309 Departmentof Corrections Re: Whether the order of CrimlnHuntsville,Texas al DistrictCourt No. 4 of Harris County creditingthe sentenceof an Inmate of the Texas Departmentof Corrections under Article 768, C. Dear Dr. Beto: C.P. Is a valid order.

Your letter of July 30, 1964, requestingan opinion by this office reads:

"In the CriminalDistrict Court No. 4 of Harris County,Texas, at the November 1963 Term, on November 18, 1963, in Cause No. 106979, Lawrence P. Schmideberg was convictedof the offense of theft and his punishmentwas assessedat three years. On the same day, he was sentencedfor not less than two nor more than three years and gave notice of appeal,perfectedhis appeal, and appealedhis case to the Court of Criminal Appeals,,The Court of CriminalAppealsaffirmed the convictionand the date of the Mandate is May 1, 1964. On May~25, 1964, Schmldeberg

was receivedat the Texas Department of Corrections, on commitmentpapers Issued in the above cause. 'On June 17, lgf$, we receivedcertified copy of an order enteredby Judge A. PI. Krichameron June 11, 1964, ordering that the above named Defendant Abegiven credit on his sentenceof 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. authorizesthe Court to give the Defendant credft for time spent fn jail pending

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appealf and the'fact that the Inmatewas received by the Texas Departmentof Corrections on May 25, 1964, is the order of Judge Krlchamer under date June 11, 1964, a valid credit on the sentenceof the inmate?" The order of Judge A. H. Krichamerreads:
"On this the 11th day of June, A.D. 1964, it being called to the attentionof 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 CriminalAppeals of the State of Texas, August 18, 1963, to May 1, 1964, which has been the intentionof this Court:
"It is thereforeordered,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 sentenceand forward a certifiedcopy to the authoritiesof the Texas Departmentof Correctionsto be made a part of the commitmentnow 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 expirationof 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 expirationof 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 defendantwas convicted may,wlthinhls discretion,give the defendant credit on his sentencefor the time, orany

%he trail court; ana provided further, that 'in all cases where the defendanthas been tried for any violatlon,of the'lawsof the State of Texas, and has bden convictedand

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

3ionsof &is Act shall,notapply after convictionana sentence In felony cases in which bond or recognizanceIs not permittedby law.” (Emphasisadded) The HonorableArnold 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 sentencefor 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 discretionof 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 defendantbefore him", and then “re-sentence the defendant"' and at that time subtract from the orl.ginal sentencetime lain in jail pending appeal. The Judge did not specificallyfollow the statute. However,he may do so at this late date.

Under Article 768 of Vernonrs Code of Criminal Procedure, it Is within the discretionof the trial judge to give the defendantcredit on his sentence,forthe time spent in jail, both before and after trial. It is our opinion that If theDr. George Beto, page 4 (C-309)

trial judge will recall the defendantbefore him and re-sentence him he ?nay,

in his discretion, provide -therein

that the defendantbe given ,credlt for time spent in jail.

The Order cif.'Crlmlnal DistrictCourt No. 4 of Harris County,Texas, crediting the sentenceof an Inmate of the Texas De artment of Corrections under Article 76g,~ C.C.P~.,

is not a valid order. However, the judgemay recall the defendant and re-sentence

him and thereinnlve the defendant credit on his sentence-for the time he spent in jail.

Very truly yours, WAGGONER CARR AttorneyGeneral of Texas

VFr/dt/br APPROVED: OPINION COM&UT'PEE
W. V. Geppert,ChalIlnan Robert Smith mdy Coleman Roy Johnson Bill Allen
APPROVEDFORTHE ATTORNEX GENERAL By: Roger Tyler

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