Could a Texas sheriff award county-jail good-time credit for days an inmate served before sentencing?

Texas AG Opinion JM-73: Presentence County-Jail Good-Time Credit

Plain-English summary

JM-73 concluded that a county sheriff could award article 5118a good-time credit for confinement served before judgment and sentencing to a county-jail term. Mandatory presentence jail credit made that period part of the original sentence for good-time purposes.

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Article 5118a gave the sheriff discretion to award the credit, but the sheriff had to consider all time actually served on equal terms. Limiting consideration to post-sentence days risked denying equal protection.

"The statute grants a sheriff discretion in such an award."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

"Since we have recognized that pre-judgment time is considered part of the sentence for purposes of commutation, it follows that all time actually served must be given equal weight."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

"Denial of equal protection is likely to result if only post-sentencing time is considered for good time credit."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

The opinion also concluded that an inmate could receive article 5118a good-time credit or manual-labor credit under article 43.10, but not both. The statute prohibited any additional time allowance when good-time credit was awarded.

"No 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was credit for presentence jail time itself mandatory?

Yes. Former article 42.03, section 2(a) required the judgment to credit confinement from arrest through sentencing.

"[T]he 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 arrest and confinement until his sentence by the trial court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

"This provision is mandatory in giving credit for time served after arrest but prior to sentencing."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Did the sheriff have to award good-time credit?

No. Article 5118a made the award discretionary, but required equitable consideration of each inmate's conduct when the sheriff considered credits.

"The statute grants a sheriff discretion in such an award."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

"A sheriff must 'consider each inmate's conduct for such credits, and consideration must be given equitably.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Could the lack of a formal sentence during presentence confinement justify denying good time?

No. JM-73 relied on Ex parte Minjares for the rule that the absence of a formal sentence could not be used to deny statutory credit.

"Likewise, the absence of a formal sentence may not be used to deny a prisoner credit under the statute."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Could a sheriff consider only the days served after sentencing?

No. Once presentence confinement was treated as part of the sentence, all days actually served had to receive equal weight.

"[A]ll time actually served must be given equal weight."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

"Denial of equal protection is likely to result if only post-sentencing time is considered for good time credit."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Could an inmate combine good-time and manual-labor credits?

No. The final statutory language retained the ban on additional credits, even though an earlier House version would have created an exception for article 43.10 labor credit.

"However, the final version, passed by both houses, left the sentence as it read when article 5118a was enacted by the Fifty-fourth Legislature."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

"[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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Background and statutory framework

The executive director of the Texas Commission on Law Enforcement Standards and Education asked three questions about sheriffs' good-time authority and the interaction with other credits.

"You ask three questions concerning a sheriff's authority and discretion to award good time credits pursuant to article 5118a, V.T.C.S., and the effect of such an award on other allowances or credits."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Article 5118a allowed a sheriff to commute time for good conduct, industry, and obedience, up to one day for each day of the original sentence actually served when no misconduct charge had been sustained.

"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 in time not to exceed one (1) day for each day of 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 prisoner."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Holding

"A sheriff may award good time credits pursuant to article 5118a 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, no other credits are allowed."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Citations and references

Statutes discussed by JM-73:

• "article 5118a, V.T.C.S." Official PDF
• "Article 42.03, section 2(a) of the Code of Criminal Procedure" Official PDF
• "Article 43.10, Code of Criminal Procedure" Official PDF
• "House Bill No. 647" Official PDF

Cases cited by JM-73:

• "Kopeski v. Martin, 629 S.W.2d 743, 746 (Tex. Crim. App. 1982)" Official PDF
• "Jones v. State, 545 S.W.2d 771, 772 (Tex. Crim. App. 1977)" Official PDF
• "Ex parte Minjares, 582 S.W.2d 105, 109 (Tex. Crim. App. 1979)" Official PDF
• "Gardner v. State, 542 S.W.2d 127, 130 (Tex. Crim. App. 1976)" Official PDF
• "Pruett v. State of Texas, 470 F.2d 1182 (5th Cir.), aff'd, 414 U.S. 802 (1973)" Official PDF
• "Mrs. Tucker's Foods v. Calvert, 296 S.W.2d 787, 789 (Tex. Civ. App. - Austin 1956, writ ref'd n.r.e.)" Official PDF

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0073
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0073.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

September 19, 1983

Mr. Fred Toler
Executive Director
Texas Commission on Law Enforcement Standards and Education
220-E Twin Towers Office Building
1106 Clayton Lane
Austin, Texas 78723

Opinion No. JM-73

Re: Whether sheriff may reduce jail time pursuant to article 5118a, V.T.C.S., for time inmate serves prior to judgment

Dear Mr. Toler:

You ask three questions concerning a sheriff's authority and discretion to award good time credits pursuant to article 5118a, V.T.C.S., and the effect of such an award on other allowances or credits.

You first ask whether a sheriff may include a deduction based on the time an inmate is confined to jail prior to judgment and sentence in his commutation for good conduct.

Article 5118a, V.T.C.S., provides in pertinent part:

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 in time not to exceed one (1) day for each day of 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 prisoner.

The statute grants a sheriff discretion in such an award. Kopeski v. Martin, 629 S.W.2d 743, 746 (Tex. Crim. App. 1982).

Article 42.03, 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 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. Crim. App. 1977).

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. 1979). See also Gardner v. State, 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 pre-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, supra, 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 commutation 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, 54th Leg., ch. 461, §1, at 1183.

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 5118a to read:

Except as provided in Article 43.10, Code of Criminal Procedure, 1965, as amended, no 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 5118a 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 5118a 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, no other credits are allowed.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

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