Case Information
*1 THE .i%TTORNEY GENERAL OF TEXAS AUSTIN ai. T-n
cmovlm SExlmm
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 re- oelpt 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 hae been entered, or motion aoted upon, the court etlllhar any jud-t 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 con- viction 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 APmovED 0PlmoI!
APPROVED OCT 22, 1945
ColMIT%BBYGWBCEAlREIAEl /a/Carlos C. Ashley
FIRSTASSISTAlVTATlQRREYGEiEBAL