Case Information
*1 THEA'ITBECNEYGENERAL OF TEXAS AunTIN. TEzxas 78711 March 27, 1973 Honorable John Henry Tatum Opinion No. H- 21 County Attorney, Angelina County
P. 0. BOX 582 Re: Whether sentence of person Lufkin, Texas 75901 convicted of felony may be
reduced by time that he has spent in county jail awaiting determination of his appeal.
Dear Mr. Tatum:
In your request for the opinion of this office you state that a man in the county jail was convicted of armed robbery, was sentenced to four- teen years in the Texas Department of Corrections, and has been in jail for thirty months. His conviction was recently affirmed by the Because of the length of time he has been Court of Criminal Appeals. in jail and because he has apparently reformed and will make a good citizen, you ask whether a district judge has authority to reduce his sentence. .
It is our opinion that the court has no jurisdiction, except for the app:!lcation of Article 42. 03. Vernon’s Texas Code of Criminal Proced- ure. l,o enter any order affecting the judgment and sentence. State v. Kiein, 224 S. W,2d 250, (Tex. Crim. 1949). Therefore, the district judge may not reduce the overal, sentence to a term less than fourteen years.
On the ot,her hand, Article 42. 03 ores provide that the judge of the court m which t,he defendant was convict,ed may, within his discretion, give the defendant credit for time spent m jail. 486 S. W, 2d 556( Tex. Grim. 1972), the court In Ex parte Freeman, ,_-
helo that, under Article 42.03, the trial judge had complete discretion as to credii on a sentence for time spent in jail but that. pursuant to N. Carolina v. Pearce, 395 U. 5711, 23 L. Ed. 2d 656, 89 S, Ct. 2072 (1969), and Robinson v. Beto, 426 F. 2d 797 (5th Cir. 1970), the defend- ant is constitutionally entitled to credit for the time from conviction until determination of his appeal.
p* 97 *2 Honorable John Henry Tatum, page 2 (H-21)
To answer your question specifically, we would state that the district judge has no authority to reduce the defendant’s sentence from fourteen years to some lesser term. He does have discretion, however, to grant credit for pre-trial time ,spent in jail between arrest and final conviction. and must give credit for time spent in jail awaiting determination of apx
SUMMARY After appeal to the Court of Criminal Appeals and affirmation by that court, the trial court lacks juris- diction to reduce a sentence but does have jurisdiction and discretion to grant credit for time spent in jail prior to final conviction and must give credit for time spent in jail pending appeal.
Very truly yours, Attorney General of Texas . APPl$IVED:
DAV:D M. KE-NDALL.
Opinion Committee
p. 98