Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
September 19, 1983
JIM MATTOX
Attorney General
Supreme Court Building Mr. Fred Toler Opinion No. JM-73
P. 0. BOX 12546 Executive Director
Austin. TX. 76711. 2546 Texas Commission on Law Enforcement Ret Whether sheriff may
5121475-2501
Standards and Education reduce jail time pursuant to
Telex 9101674-1367
Telecopier 512/475-0266 220-E Twin Towers Office Bldg. article 511&t, V.T.C.S., for
1106 Clayton Lane time inmate serves prior to
Austin, Texas 78723 judgment
714 Jackson, Suite 700
Dallas. TX. 75202.4506
2141742-6944
Dear Mr. Toler:
You ask three questions concerning a sheriff's authority and
4624 Alberta Ave., Suite 160 discretion to award good time credits pursuant to article 5118a,
El Paso. TX. 79905.2793
V.T.C.S., and the effect of such an award on other allowances or
915/533-3464
credits.
- -1 Texas, Suite 700 You first ask whether a sheriff may include a deduction based on
,os,on. TX. 77002-3111 the time an inmate is confined to jail prior to judgment and sentence
71312236666 in his commutation for good conduct.
606 Broadway. Suite 312
Article 5118a, V.T.C.S., provides in pertinent part:
Lubbock. TX. 79401.3479
60617476236 Commutation of time for good conduct, industry and
obedience may be granted the inmates of each
county jail by the sheriff in charge. A deduction
4309 N. Tenth, Suite S
McAlle”, TX. 76501.1665
in time not to exceed one (1) day for each day of
5121662.4547 the original sentence actually served may be made
from the term or terms of sentences when no charge
of misconduct has been sustained against the
200 Main Plaza, Suite 400
prisoner.
San Antonio, TX. 76205.2797
512/225.4191
The statute grants a sheriff discretion in such an award. Kopeski V.
Martin, 629 S.W.2d 743, 746 (Tex. Grim. App. 1982).
An Equal Opportunity/
Affirmative Action Employer
Article 4.03, section 2(a) of the Code of Criminal Procedure
applies to all criminal cases and provides that
the judgment of the court in which the defendant
was convicted shall give the defendant credit on
his sentence for the time that the defendant has
spent in jail in said cause, from the time of his
--
p. 312
Mr. Fred Toler - Page 2 (m-73)
arrest and confinement until his sentence by the
trial court.
This provision is mandatory in giving credit for time served after
arrest but prior to sentencing. Jones V. State, 545 S.W.2d 771, 772
(Tex. Grim. App. 1975).
When the two statutes are considered together, it is apparent
that pre-judgment time is to be treated as part of the original
sentence and as such may be considered for good time credit. Case law
supports this conclusion. In Kopeski V. Martin, supra, the court
stated that an inmate is entitled to credit for good conduct under
article 5118a for time served prior to sentencing to a term in the
county jail. Likewise, the absence of a formal sentence may not be
used to deny a prisoner credit under the statute. Ex parte Minjares,
582 S.W.2d 105. 109 (Tex. Crim. App. 1978). See also Gardner V.
J&&e, 542 S.W.2d 127, 130 (Tex. Crim. App. 1976); Attorney General
Opinion C-310 (1964). Accordingly, we conclude that a sheriff may
award good time credits under article 5118a for time served prior to
sentencing to a term in the county jail.
Your second question concerns whether a sheriff must consider
pre-judgment time for good time credit in order to prevent denial of
equal protection.
Since we have recognized that pm-judgment time is considered
part of the sentence for purposes of commutation, it follows that all
time actually served must be given equal weight. A sheriff must
"consider each inmate's conduct for such credits, and consideration
must be given equitably." Kopeski V. Martin, e, at 746. Denial
of equal protection is likely to result if only post-sentencing time
is considered for good time credit. See Pruett V. State of Texas, 470
F.2d 1182 (5th Cir.), aff'd, 414 U.S.802 (1973).
Your final question is whether an award of good time credit
precludes any other time allowance or credits such as manual labor
credit.
Article 5118a provides in part that:
No other time allowance or credits in addition to
the conmutation of time for good conduct herein
provided for may be deducted from the term or
terms of sentences. (Emphasis added).
This limitation has remained a part of the statute since it was first
enacted. -See Acts 1955, 64th Leg., ch. 461, §l, at 1183.
p. 313
Mr. Fred Toler - Page 3 (JM-73)
Where a statute is unambiguous, the language is determinative of
the legislative intent. Mrs. Tucker's Foods V. Calvert. 296 S.W.2d
787, 789 (TeX. Civ. App. - Austin 1956, writ ref'd n.r.e.). There is
nothing ambiguous or unclear about this provision. It plainly states
that, where an inmate accumulates credits for good behavior, no other
credits will be allowed.
The legislative history of the most recent amendment to the
statute is further evidence that the legislature intended to so limit
credits for jail sentences. The original version of the bill as
passed by the Texas House of Representatives changed this part of
article 5118s to read:
Except as provided in Article 43.10, Code of
Criminal Procedure, 1965, as amended, no [++~a]
other time allowance or credits in addition to the
commutation of time for good conduct herein
provided for may be deducted from the term or
terms of sentences.
Engrossed Third Reading of House Bill No. 647, Bill File for House
Bill No. 647, 67th Leg., Legislative Reference Library. However, the
final version, passed by both houses, left the sentence as it read
when article 5118s was enacted by the Fifty-fourth Legislature. See
V.T.C.S. art. 5118a. The only reasonable conclusion is that a county
jail inmate may receive good time credits under article 5118a,
V.T.C.S., or manual labor credits under article 43.10, Code of
Criminal Procedure, but not both.
SUMMARY
A sheriff may award good time credits pursuant
to article 5iiaa for time served prior to
sentencing. He must give equal consideration to
all time served in order to avoid denial of equal
protection. Where good time credits are awarded,
J h
no other credits are allowed.
Very truly your ,
A
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
p. 314
. “.
Mr. Fred Toler - Page 4 (JM-73)
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Jim Moellinger
Nancy Sutton
p. 315