### 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 toArticle 42.12,Vernon's Code of Criminal Procedure.
"Does thedefendant have theburden of proof to establish his eligibility forprobation when hehas pled guilty and the jury has been waived in theproper manner but he has not made awritten formal application forprobation?" The applicable portions ofArticle 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 thebest interests of the public aswell as the defendant will be subserved thereby, shallhave thepower, after conviction or aplea of guilty for any crime or offense, where the maximum punishment assessed against the defendant does not exceed tenyears imprisonment, to suspend the **im** position of the sentence and **may**place the defendant onprobation or impose a fine applicable to the offense committed and also place the defendant onprobation ashereinafter provided. Any suchperson placed on

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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 thepunishment assessed by the jury shall not exceed ten years, the jurymay recommend probation upon written swornmotion 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 ofhis right tomake such motion, and the court shall appoint counsel toprepare andpresent same, ifdesired by the defendant. In no case shallprobation be recommended by the jury except when the swornmotion andproof 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 isnot tobe construed aspreventing the jury frompassing on the guilt of the de~fendant,but hemay enter aplea of not guilty. In all eligible cases, probation shall be granted by the court if the jury recommends it in their verdict. "Ifprobation is granted by the jury the court may impose only those conditions which are set forth in Section 6hereof.
"Sec. 3b.
. . . "Sec. 3c. Nothing herein shall limit the power of the court to grant aprobation of sentence regardless of the recommendation of the jury orprior conviction of the defendant." Where trial isbefore a jury, the defendant clearly make a sworn application forprobation andmust sustheburden of showing that hehas never been convicted must tain of a felony before the jury can recommend aprobated sentence under Section 3a. Herring v. State, 440 S.W.2d 649 (Tex.Crim., 1969).

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No requirement for a sworn motion andproof of eligibility forprobation 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 aprior 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 thepublic and the defendant will be ,servedby aprobated sentence. The trial court has absolute discretion to decide whether to grant probation, and no authority exists bywhich adefendant 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 adefendant whose sentence is tobe determined by the trial judge is not under aburden ofproof to establish eligibility forprobation, although the trial judge may inhis discretion require suchproof ashe deems appropriate. Obviously adefendant may desire to produce evidence to show that the ends of justice and thebest interests of the public, aswell ashimself, will be served by aprobated 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 theHerring decision is that an application forprobation places noburden upon the state to refute the defendant's eligibility forprobation.

SUMMARY

The trial judge has the discretion to grant probation when the judge is satisfied that the ends of justice and thebest interests of the public and the defendant will be served by a probated sentence, and the defendant isnot under aburden ofproof to show eligibility forprobation when the sentence is tobe assessed by the judge, although the trial judge inhis discretion may require such proof ashe 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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