THE ATKBEZNEY GENERAL 

OF-XAS 

Honorable D. Brooks Cofer, Jr. 

District Attorney Opinion No. M-882 

Bras06 County 

Box 3520 Re: Article 42.12, Section 3c, 

Bryan, Texas 77801 Vernon's Code of Criminal 

Procedure. 

Dear Mr. Cofer: 

Your opinion request poses the following question in 

regard to Article 42.12, Vernon's Code of Criminal Procedure. 

"Does the defendant have the burden of 

proof to establish his eligibility for probation when he has pled guilty and the jury 

has been waived in the proper manner but he 

has not made a written formal application 

for probation?" 

The applicable portions of Article 42.12 read as follows: 

"Sec. 3. The judges of the courts of the 

State of Texas having original jurisdiction 

of criminal actions, when it shall appear to 

the satisfaction of the court that the ends 

of justice and the best interests of the 

public as well as the defendant will be subserved thereby, shall have the power, after 

conviction or a plea of guilty for any crime 

or offense, where the maximum punishment assessed against the defendant does not exceed 

ten years imprisonment, to suspend the imposition of the sentence and may place the 

defendant on probation or impose a fine applicable to the offense committed and also 

place the defendant on probation as hereinafter provided. Any such person placed on 

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Honorable D. Brooks Cofer, Jr., Page 2 (M-882) 

probation, whether in a trial by jury or 

before the court, shall be under the supervision of such court. 

"Sec. 3a. Where there is a conviction in 

any court of this State and the punishment 

assessed by the jury shall not exceed ten 

years, the jury may recommend probation upon 

written sworn motion made therefor by the 

defendant, filed before the trial begins. 

When the trial is to a jury, and the defendant has no counsel, the court shall inform 

the defendant of his right to make such 

motion, and the court shall appoint counsel 

to prepare and present same, if desired by 

the defendant. In no case shall probation 

be recommended by the jury except when the 

sworn motion and proof shall show, and the 

jury shall find in their verdict that the 

defendant has never before been convicted 

of a felony in this or any other State. 

This law is not to be construed as preventing the jury from passing on the guilt of 

the de~fendant, but he may enter a plea of 

not guilty. In all eligible cases, probation shall be granted by the court if the 

jury recommends it in their verdict. 

"If probation is granted by the jury the 

court may impose only those conditions which 

are set forth in Section 6 hereof. 

"Sec. 3b. . . . 

"Sec. 3c. Nothing herein shall limit the 

power of the court to grant a probation of 

sentence regardless of the recommendation of 

the jury or prior conviction of the defendant." 

Where trial is before a jury, the defendant clearly 

make a sworn application for probation and must susthe burden of showing that he has never been convicted must 

tain 

of a felony before the jury can recommend a probated sentence under Section 3a. Herring v. State, 440 S.W.2d 649 

(Tex.Crim., 1969). 

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Honorable D. Brooks Cofer, Jr., Page 3 (M-882) 

No requirement for a sworn motion and proof of eligibility 

for probation is found in Section 3, which authorizes the 

trial judge to grant probation. Section 3c further empowers 

the trial judge to grant probation regardless of the recommendation of the jury or the existence of a prior conviction 

of the defendant. The only requirements placed on the judge's 

decision are that the sentence must not exceed ten years and 

that the judge must be satisfied that the ends of justice and 

the best interests of the public and the defendant will be 

,served by a probated sentence. The trial court has absolute 

discretion to decide whether to grant probation, and no authority exists by which a defendant can require the granting of 

probation. Redd v. State, 438 S.W.2d 565 (Tex.Crim., 1969); 

Martin v. State, 452 S.W.2d 481 (Tex.Crim., 1970). The exercise of the trial court's discretion is not appealable. Kerry 

v. State, 452 S.W.?d 480 (Tex.Crim., 1970). 

This office is therefore of the opinion that a defendant 

whose sentence is to be determined by the trial judge is not 

under a burden of proof to establish eligibility for probation, 

although the trial judge may in his discretion require such proof 

as he deems appropriate. Obviously a defendant may desire to 

produce evidence to show that the ends of justice and the best 

interests of the public, as well as himself, will be served by 

a probated sentence and should have no ground for complaint if 

he fails to do so and does not receive probation. At the same 

time, the clear meaning of cases such as the Herring decision 

is that an application for probation places no burden upon the 

state to refute the defendant's eligibility for probation. 

SUMMARY 

The trial judge has the discretion to grant 

probation when the judge is satisfied that the 

ends of justice and the best interests of the 

public and the defendant will be served by a 

probated sentence, and the defendant is not 

under a burden of proof to show eligibility 

for probation when the sentence is to be 

assessed by the judge, although the trial 

judge in his discretion may require such 

proof as he deems appropriate. Art. 42.12, 

V.C.C.P. 

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Honorable D. Brooks Cofer, Jr., Page 4 (M-882) 

Your K very truly, 

Prepared by Roland Daniel Green, III 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Larry Craddock 

Sam Jones 

John Banks 

Fisher Tyler 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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