Honorable Albert W. Searcy Opinion Wo. C-578

County Attorney Kimble County Re: May a judge,without the Junction,Texas interventionof a jury, grant a defendantprobation under the terms of the Misdemeanor Probation Dear Mr. Searcy: Law, X966?

You have requested an opinion of this office concerning the granting of probation under Article 42.13,Vernon's Code of Criminal Procedure of Texas, 1966. More specifically, your question is as follows:

"Does the Misdemeanor ProbationLaw of 1966 authorize a judge,without the interventionof a jury,upon a plea of guilty by a defendant and subsequent finding of guilty of said defendantby the court, to place said defendant on probation, or may probationbe granted under this law only after a trialbefore a jury?" Article 27.14,Vernon's Code of Criminal Procedureof Texas, provides, in part, as follows:

"Aplea of guilty or a plea of nolo contendre in a misdemeanor casemay be made either by the defendant or his counsel In open court; in such case, the defendant or his counselmay waive a jum, and the punishmentmay be assessedby the court eitherupon or without evidence,at the discretion of the court.
. . .ll
It seems clear that the Legislaturehas evidenced its intent that defendants in all misdemeanor cases be entitled to waive a juryand enter a plea of guilty before the court. The article just quoted, of course,does not prohibit the entering of such a plea when probation is a possible punishment.

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We thenmust look ,to Article 42.13, Section 3 which is the operativeportion of the Misdemeanor ProbationLaw. Sections 3(a) and 3(b) of said Article are as follows:

"(a) A defendantwho has been found guilty of a misdemeanorwherein themaximum permissiblepunishment is by conflnement in jail or by a fine in excess of $200 may be grantedprobation if: "(1) he applies in writing to the court for probation before trial; "(2) he has never before been convicted in this or another jurisdictionof a felony or of a misdemeanor for which the maximum permissiblepunishment is by confinement in jail or exceeds a $200 fine;

“(3) he has not been grantedprobation nor been under psobation under this Act or any other Act in the preceding five years; "(4) he has paid all costs of his trial and somuch of any fine Imposed as the court directs; and

“(5) the courtbelfeves that the ends of justiceand the best interests of society and of the defendantwill be servedby granting him probation. "(b) If a defendant satisfies the requirements of Section 3(a) (l), (2), (3), and (4) of this Article, and the juryhearing his case recommendsprobation in its verdict, the court must grant the defendantprobation. The court may, however, extend the term of the probationary period to any length of time not exceeding themaximum time of confinementallowedby law. In the event probation is revoked in accordance with Section 6, the judgmentof the court shall not prescribe any penalty in excess of that imposed by the jury."
It will be noted that Section 3 Is divided into four major divisions, (a), (b), (c) and (d). Divisions (a) and are applicable to the questionat hand. It is the opinion

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of this office that Section 3(a) sets out the requirementsand procedure for the granting of probationwhen the defendanthas been found guilty of a misdemeanorby a courtwithout the intervention of a jury. It will be noted that Section 3(a) (5) places discretion in the court for the granting of probation. Generally speaking, it simply states that the courtmay ormay not grant probation depending on whether he believes that the ends of justice and the best interests of society and of the defendant will be served by the granting of probation. This obviously places discretion in the court.

Then Section 3(b) states that if the defendant satisfies the requirementsof Section 3(a) (l), (2), (3) and (4),and the juryhearing his case recommendsprobation In Its verdict, the courtmust grant the defendantprobation. It is felt partlcularly significant to note that Section 3(a) (5) is omitted from the requirementsof Section 3(b). In otherwords, Section 3(b), when speaking of the grantin7 of probation after a jury trial, by the omission of Section 3 a) (5) removes all discretion from the court. It Is, therefore, the opinion of this office that Section 3(a) is applicable after a finding of guilty of a defendant by a court without the interventionof a jury and Section 3(b) IS applicable to all jury trials inmisdemeanor cases.

We are of the opinion, therefore, that a judge,without the intervention of a jury in a misdemeanor case, after a finding of guilty of a defenda& who otherwisemeets the requirements of themisdemeanorprobation law,has the authority to place the defendant on probation. SUMMARY Under the Misdemeanor ProbationLaw of 1966, a courtmay, without the iritervention of a jury upon a finding of guilty of a defendant In a misdemeanor case,place that defendant on probation providing that all the other requirements of themisdemeanorprobation law are met. Yours very truly, WAGGONER CARH Attorney General of Texas

SLK/lh/br
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APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Douglas Chilton Howard M. Fender Pat Bailey W. 0. Shultz APPROVED FOR THE ATTORNEYGENERAL B-Y: T. B. Wright

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