THE .i%TTORNEY GENERAL 

OF TEXAS 

cmovlm SExlmm AUSTIN ai. T-n 

Honorable Otto P. Moore 

CountyAttorney 

Colorado county 

C~lumbua, Texas 

opinion Ho. 0-6301 

Be: Oau County Judge during tern 

in whioh he rendered judme& 

of oonviotion, set eme -Me 

after defendant hae pale fins 

and costs; and, if 80, what is 

legal disposition of ma me 

and coats? 

Dear Sir: 

We have reoeived your recent ocmnunioation, in which you aulznit 

for our detennlnation the following mtterr 

On Anguet l.3, 1945, the Comty Judge of Colorado County, Tesae, 

aooepted a plea of guilty to an information oharging a violation of the 

liquor laws filed In the oounty oourt, and rendered judaent again& 

defendtic for a fine of $100.00 and cotita of court. Bo motion wae'.made 

for a new trial, tier wae an appeal taken, and immrediately after the 

rendition of said judgment, the defendant paid such fine and ooste to the 

county clerk. The following day, on Auguet 14, 1945, the county judge, 

a8 ahown by his docket entry, rendered an order aet,tlng said judgment 

aeide. Tne queetione involved are; 

1. CM the county judge legally set aside e Judgment 

such 88 was given in this case when the defendant~pleade 

guilty and had already paid his fine and received a reoelpt for the same by t&e clerk of the court? 

2. What iB the 18~1dikQO63itiOll Of the fine and OOBts 

aa shown by the facta & this oaee? 

We assume that all tie acts in question wourred during the 

eeme tern of county court., and that the jn@ent rendered on August l3, 

1945, as aforesaid, wae duly entered in the minutes and approved by the 

county judge before the expiration of said term of court. Fm the faote 

etated we oannot assume that the jud@nent of Auguet 14, 1945, wae at the 

fn&anoe or on motion of the defendant. 
Honorable Otto P. Moore, Page 2 (O-6801) 

The general rule is that during the tam of the oourtatwhlah 

any jud-t hae been entered, or motion aoted upon, the court etlllhar 

power mar all of ltr prooeedlngn and may oorreot and reform or aet ulde 

any jumt or aotlon of the oourt had during the term. Sea Pens Y: 

State (Grim. App.), 24 6. W. (2) 396; Bundiok Y. State, 59 arim. Rep. 9, 

127 8. W. 543; Eumphrler v. State (Grim. App.), 69 8. W. 527; Metoalf v. 

State, 21Crlm. App. 174, 17 9. W. 142. 

However, in a oriminal oa88 if the aooueed hae suffered acme 

puniehment under the jud@mnt, the court la powerless to &sage it in 

any substantial respect, unless at the instance or on motion of defendant. 

See Griaheu v. State, 19 Crti. App. 504; Brezela v. State, 92 Grim. Rep. 

479, 244 8. W. 529; and Turner v. State, 116 Cr. R. 154. 

Therefore, giving application to the principle8 oontrolling, 

we are con&rained to hold that, unless at the -tan08 or on motion of 

defendaat, It wae beyond the power of the uounty judg8 to eet aeide the 

original judment rendered on August l.3, 1945. Such being the oaee, the 

order of A&et 14, 1945, attempting to set aside the original judepnaat, 

was a nullity and oannnot be enfprced, but the original judment of conviction is legal and atanda 88 ekeouted, 

In view of our answer to your question Ho. 1, it is mneoesaery 

to anewer queetlon Bo. 2. 

Youm very truly, 

By /a/ Robert L. Iattimore, Jr. 

Robert L. IattImore, Jr. 

Assietmt 

RLTJgb-da 

APPROVED OCT 22, 1945 

/a/Carlos C. Ashley 

FIRSTASSISTAlVTATlQRREYGEiEBAL 

APmovED 0PlmoI! 

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