The Honorable Wiley L. Cheatham Opinion No. Ii-806

District Attorney 24th Judicial District Re: Judgment andproCuero, Texas 77954 bation order specifying indeterminate term of punishment.
Dear Mr. Cheatham:
You ask: (1) Inreciting and setting out the punishment inan order placing an accused on probation under C.C.P. art. 42.12, for a felony conviction,.

. .should thewording provide an indeterminate sentence.
. .as required and provided inC.C.P. art. 42.09 or should adefinite punishment for a specific number of years be recited in the order? (2) When thewording which sets out the punishment is incorrect, what is the legal effect and what procedure should be used to correct [it] s . .? The distinction between a judgment ahd a sentence must be kept inmind. See Code Crim. Proc. arts. 42.01, 42.02. Without a judgment, 7 sentence isunauthorized. Morgan v. State, 515 S.W.2d 279 (Tex.Crim. App. 1974); Scott 2 - State, 461 S.W. 2d 619 (Tex.Crim. App. 1971); 5Tex. Jur.Zd, Appeal and Error -- Criminal Cases 9 119. The indeterminate sentence law, however, has no application to a judgment. Can0 v. State, 450 S.W.2d 646 (Tex.Crim. App. 1979). --

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The Honorable Wiley L. Cheatham -page 2 (H-806)

You have furnished two samples of completed instruments, each purporting to embody both the judgment of the court in a felony case and the order of probation. The first of the judgments correctly assesses adefinite term of punishment (10years) and orders probation for a specific period (10 years) during which the imposition of sentence is suspended. The second instrument incorrectly recites the assessed punishment as "notmore than eight (8)years, nor less than two (2)years," but recites a specific period (8years) during which the imposition of sentence is tobe suspended. The indeterminate sentence statute, article 42.09, Code of Criminal Procedure, provides that in "passing sentence" where averdict has fixed the punishment at confinement in thepenetentiary for more than aminimum term, the judge "shallpronounce an indeterminate sentence.
. . ." But this stage isnot reached, ifprobation isgranted, because the power togrant probation ina felony case isnow exercised by suspending "the imposition [notthe execution] of the sentence.
. . ." Code Crim. Proc. art. 42.12, S9 3, 7, 8. See Special Commentary by Honorable John F. Onion, Jr., following Code Crim. Proc.,art. 42.12. The term "probation" means "the release of a convicted defendant by a court under conditions imposed by the court for a specified period during which the rmposltion of sentence is suspended." Code Cram. Proc. art. 42.12, 5 2(b). Thus, inanswer toyour first question, the judgment should reflect apunishment fixed at adefinite number of years, and the order ofprobation should reflect aprobationary period for adefinite period of time (whichnow may be different from thenumber ofyears fixed aspunishment by the judgment), but neither thedefinite term ofpunishment recited by the judgment or the definite probationary period specified by the order ofprobation prevents the court from later pronouncing an indeterminate sentence in accordance with article 42-09 at the time theprobation isconcluded. NO sentence can be "passed" or "imposed" until that time. See Burson v. State,-511 S.W.2d 948 (Tex.Crim. App. 1974); Fly v. State, S.W.2d 122 (Tex.Cram. App. 1973); Code Cram. Proc. art. 42.04.

P. 3402The Honorable Wiley L.Cheatham -page 3 '(H-806)

Both instruments you submitted were entered by the court prior to September 1, 1975, the date upon which 1975 amendments to article 42.12 of the Code of Criminal Procedure became effective. Inspection of Court of Criminal Appeals records reveals that the judgment and order ofprobation in Can0 v. State, supra, is essentially identical to the furnished instrument incorrectly reciting an indefinite term of adjudged punishment. In a footnote to its opinion, the court noted an improper attempt toapply the indeterminate sentence law. The Cano Court interpreted the "indeterminate sentence" language ofhe judgment there ["not less than two (2) years, normore than five (5)years"] as assessing adefinite five year term,which coincided with the specific period of probation (5years) recited by the order of probation portion of the instrument. We have no reason tobelieve the Court of Criminal Appeals would adopt adifferent posture with respect to the instrument you have submitted tous, and the answer toyour second question is that the legal effect of that instrument is the same as though an assessed punishment of eight years were definitely set out in the judgment, and nothing need be done to correct the judgment language.
You have not asked about'instruments entered after the 1975 amendments to article 42.12, Code of Criminal Procedure, took effect, nor about the effect of "indeterminate sentence" language used todesignate theperiod ofprobation, andwe do not reach thosematters. SUMMARY Where probation isutilized under article 42.12, Code of Criminal Procedure, the judgment ina felony case should reflect apunishment fixed at adefinite number ofyears and an order of probation should reflect aprobationary period for adefinite period of time.

P. 3403The Honorable Wiley L. Cheatham -page 4 (H-806)

jwb

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