letter of recent date requesting a legal opinion from this department states that one Jep Flannery was conaict- ed of the offense of rape and given a 20 year sentence in the district court of Van Zandt'Countg and was sentenced on the 29th day of September, 1937; that this defendant was arrested on the 10th day of May, 1937, and remained In jail.until the issuance of the mandate on the 27th day of June, 1938, follow- ing the affLrmance of his conviction by the Courtof Crimrnal Appeals; that "in a court order dated May 22, 1939, It was ordered that a credit of jail time dating from the date'of arrest, May 10, 1937, to June 27, 1938 (the date on which the mandate was issued) be given on this sentence". We arssume that this "court ordern was by the district court wheretn the defendant was convicted.

In connection with these facts you propound the fol- lowing questlonz

"The question involved Is should we credit this inmate with jail time as ordered from May 10, 1937, the date of arrest, to June 27, 1938, the date the Mandate was issued; or, should he be credited with only the 'time be remained in jaF1 until the date of sentence, which would be from May 10, 1937 to September 29, 1937?”

In seeking to give this defendant credit on his sentence for the time spent in jail from the,date of the sentence to the date of the Issuance of the mandate, the judge of the dls'crlct court of Van Zandt County, the court in which the defendant was *2 Honorable O.J.S. Elllngson, page 2 O-2569 convicted, exceeded the specific grant of authorltg founds in Article 768 of the Penal Code of Texas which reads in part a8 follows:

'I* l * provided, that in all criminal cases the judge of the court in which the defendant was convicted may, wlthln his discretion, give the de- fendant credit on his sentence for the time or any part thereof which said defendant has spent ln jail in said cause since his arrest and confinement ( Emphasis until his sentence &The trialcourt." - ours.)- The judge of the court In which a defendant is convlct- cd is not authorized by the statutes to give credit to a de- fendant on his sentence for any time spent In jail after his sentence by the trial court and during the t%me of the pendence of his appeal to the Court of Criminal Appeals of Texas. It is recognized, of course, that the power to grant pardons, parolesor commutations of sentence rests only in the Governor upon recommendation of the Board of Pardons and Paroles.

Accordingly, you are respectfully advised that the sub- ject of your inquiry may not be credited with jail time~from the 29th day of September 1937, the date of his sentence, to the 27th day of June, 1938, the date of the issuance of the mandate upon the afflrmance of his conviction by the Court of Crlmlnal Appeals.

Yours very truly ATTORNEY GENERAL OF TEXAS By s/Zollle C. Steakleg ZollleeC. Steakley Assistant ZCS:ob:wc

APPROVED AUG 8, 1940

s/Grover Sellers

FIRST ASSISTANT

ATTORNEY GENERAL