Honorable Albert W. Searcy Opinion Wo. C-578 

County Attorney 

Kimble County Re: May a judge, without the 

Junction, Texas intervention of a jury, 

grant a defendant probation 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 Probation Law 

of 1966 authorize a judge, without the 

intervention of a jury, upon a plea of 

guilty by a defendant and subsequent 

finding of guilty of said defendant by 

the court, to place said defendant on 

probation, or may probation be granted 

under this law only after a trial before a jury?" 

Article 27.14, Vernon's Code of Criminal Procedure of 

Texas, provides, in part, as follows: 

"A plea of guilty or a plea of nolo 

contendre in a misdemeanor case may be 

made either by the defendant or his 

counsel In open court; in such case, 

the defendant or his counsel may waive 

a jum, and the punishment may be assessed by the court either upon or without evidence, at the discretion of the 

court. . . .ll 

It seems clear that the Legislature has evidenced its 

intent that defendants in all misdemeanor cases be entitled to 

waive a jury and 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. 

-2787- 
Honorable Albert W. Searcy, page 2 (C-578) 

We then must look ,to Article 42.13, Section 3 which is 

the operative portion of the Misdemeanor Probation Law. Sections 3(a) and 3(b) of said Article are as follows: 

"(a) A defendant who has been found 

guilty of a misdemeanor wherein the maximum permissible punishment is by conflnement in jail or by a fine in excess of $200 

may be granted probation if: 

"(1) he applies in writing to the court 

for probation before trial; 

"(2) he has never before been convicted 

in this or another jurisdiction of a felony 

or of a misdemeanor for which the maximum 

permissible punishment is by confinement in 

jail or exceeds a $200 fine; 

“(3) he has not been granted probation 

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 so much of any fine Imposed as the court 

directs; and 

“(5) the court belfeves that the ends of 

justice and the best interests of society and 

of the defendant will be served by granting 

him probation. 

"(b) If a defendant satisfies the requirements of Section 3(a) (l), (2), (3), and (4) 

of this Article, and the jury hearing his case 

recommends probation in its verdict, the court 

must grant the defendant probation. The court 

may, however, extend the term of the probationary period to any length of time not exceeding 

the maximum time of confinement allowed by law. 

In the event probation is revoked in accordance 

with Section 6, the judgment of 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 question at hand. It is the opinion 

-2780- 
Honorable Albert W. Searcy, page 3 (c-578) 

of this office that Section 3(a) sets out the requirements and 

procedure for the granting of probation when the defendant has 

been found guilty of a misdemeanor by a court without 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 court may or may 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 requirements of Section 3(a) (l), (2), (3) and (4), and the 

jury hearing his case recommends probation In Its verdict, the 

court must grant the defendant probation. It is felt partlcularly significant to note that Section 3(a) (5) is omitted from 

the requirements of Section 3(b). In other words, Section 3(b), 

when speaking of the grantin 

7 

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 intervention of a jury and Section 3(b) IS applicable to all jury trials in misdemeanor 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 otherwise meets the requirements of the misdemeanor probation law, has the authority to 

place the defendant on probation. 

SUMMARY 

Under the Misdemeanor Probation Law of 1966, 

a court may, 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 the misdemeanor probation law are met. 

Yours very truly, 

WAGGONER CARH 

Attorney General of Texas 

SLK/lh/br 

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Honorable Albert W. Search, page 4 (C-Y@) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Douglas Chilton 

Howard M. Fender 

Pat Bailey 

W. 0. Shultz 

APPROVED FOR THE ATTORNEY GENERAL 

B-Y: T. B. Wright 

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