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

District Attorney 

24th Judicial District Re: Judgment and proCuero, Texas 77954 bation order specifying 

indeterminate term of 

punishment. 

Dear Mr. Cheatham: 

You ask: 

(1) In reciting and setting out the 

punishment in an order placing an accused 

on probation under C.C.P. art. 42.12, for 

a felony conviction,. . . should the wording 

provide an indeterminate sentence. . .as 

required and provided in C.C.P. art. 42.09 

or should a definite punishment for a 

specific number of years be recited in the 

order? 

(2) When the wording 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 in mind. See Code Crim. Proc. arts. 42.01, 42.02. 

Without a judgment, 7sentence is unauthorized. Morgan v. 

State, 515 S.W.2d 279 (Tex. Crim. App. 1974); Scott 2 - 

State, 461 S.W. 2d 619 (Tex. Crim. App. 1971); 5 Tex. 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). -- 

p, 3401 
*, -3 

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 a definite term of punishment 

(10 years) 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 "not more than eight (8) years, nor less than 

two (2) years," but recites a specific period (8 years) 

during which the imposition of sentence is to be suspended. 

The indeterminate sentence statute, article 42.09, Code 

of Criminal Procedure, provides that in "passing sentence" 

where a verdict has fixed the punishment at confinement in 

the penetentiary for more than a minimum term, the judge 

"shall pronounce an indeterminate sentence. . . ." But 

this stage is not reached, if probation is granted, because 

the power to grant probation in a felony case is now exercised by suspending "the imposition [not the 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, in answer to your first question, the judgment 

should reflect a punishment fixed at a definite number of 

years, and the order of probation should reflect a probationary period for a definite period of time (which now may 

be different from the number of years fixed as punishment by 

the judgment), but neither the definite term of punishment 

recited by the judgment or the definite probationary period 

specified by the order of probation prevents the court from 

later pronouncing an indeterminate sentence in accordance 

with article 42-09 at the time the probation is concluded. 

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. 3402 
The 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 of probation 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 to apply the indeterminate sentence law. 

The Cano Court interpreted the "indeterminate sentence" 

language ofhe judgment there ["not less than two (2) 

years, nor more than five (5) years"] as assessing a definite 

five year term, which coincided with the specific period of 

probation (5 years) recited by the order of probation portion of the instrument. We have no reason to believe the 

Court of Criminal Appeals would adopt a different posture 

with respect to the instrument you have submitted to us, and 

the answer to your 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 to designate the period of probation, and we 

do not reach those matters. 

SUMMARY 

Where probation is utilized under article 

42.12, Code of Criminal Procedure, the 

judgment in a felony case should reflect 

a punishment fixed at a definite number 

of years and an order of probation 

should reflect a probationary period for 

a definite period of time. 

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

jwb 

p. 3404