MATTER OF M—D-- 

In DEPORTATION Proceeding 

A-7690775 

Decid,ed`by Board February 3,1961 

Conviction—Finality—Section 241-00(4), 1952 act—Effect of probation and suspension of sentence in Texas. 

(1) The Texas Adult Probation and Parole Law as amended and reenacted in 

1957 (Article 781d, Texas Code of Criminal Procedure) contains no new 

provisions affecting the "finality" of a conviction for purposes of the immigration laws. (Follows Matter of R—R—. 7-475-1 

(2) An alien convicted of burglary in Texas in 1960 in whose case (pursuant 

to the above-mentioned statute) execution of a two-year sentence was suspended and probation granted has been "convicted" within the meaning of 

section 241(a) (4) of the Act. 

CHARGE " 

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted 

of crime committed within five years after entry, to wit: Burglary. 

BEFORE THE BOARD 

DISCUSSION : This respondent, age 21, male, single, a native 

Mexican citizen, appeals from an order directing deportation. Counsel, in exceptions, contends that adult probation, following a conviction, is not a final judgment under Texas law and procedure. 

The only issue presented is whether the sentence and disposition of 

the criminal case by the court, for the crime set forth in the order 

to show cause, is a final judgment of conviction under the applicable 

laws and criminal procedure of the State of Texas. The appeal is 

submitted on the record. 

Respondent has admitted alienage. He admits that he last entered 

the United States on August 21, 1958, at El Paso, Texas, and that 

ho pleaded guilty in the District Court, El Paso County, Texas, to 

the charge of burglary, committed May 22, 1960, and was sentenced 

to the state penitentiary for a term of 2 years on July 19, 1960. 1 

Articles 1389, 139U, and 1391, Vernon's Texas Penal Code, in effect when 

respondent was convicted, are statutes defining burglary, all of which provide 

among other elements that the offense shall consist of entering with intent to 

commit a felony, or the crime of theft. Punishment for burglary is set forth 

io Article 1307 of the aforesaid code, namely, confinement in the penitentiary 

not less than 2 nor more than 12 years. The crime in the instant case, committed with intent to commit theft, involves the element of moral turpitude. 

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Exeenti on of the sentence was suspended and respondent was placed 

on probation for a term of 2 years in accordance with the Adult 

Probation and Parole Law of the State of Texas. The terms and 

conditions of probation were set forth by the court: 

Commit no offence against the laws of this or any other State or the United 

States. 

Report to his father Mr. M— as Probation Officer. 

The Defendant is hereby released and paroled on his own personal recognizance in the penal sum of $2,000.00 this day taken in open court. 

Deportability is challenged by counsel in exceptions (Form 

I-290A) solely on the allegation that because respondent was placed 

on probation under the Adult Probation and Parole Law of Texas, 

the sentence, which was suspended, is not a final judgment of conviction. No precedents or points of law or procedure have been 

submitted to support the allegations. 

The special inquiry officer has considered counsel's exception. He 

has observed that the specific procedure under which respondent 

was placed on probation was amended in 1957. However, the special 

inquiry officer decided that the sentence pronounced by the court 

was a final judgment of conviction for the crime charged, and that 

the sentence (judgment) satisfies the provision of section 241(a) 

(4), the first part, Immigration and Nationality Act, so as to render 

respondent deportable. As precedent, the special inquiry officer 

relies on the fact that we considered and adjudicated the same 

issue in a similar case arising under the statutory law and criminal 

procedure in Texas jurisdiction (Matter of R—R—, 7-478 (B.I.A., 

1957) ). In substance, the only question presented is whether the 

Adult Probation and Parole Law of Texas, as amended and reenacted 

in 1957, affects the finality of the judgment of conviction in this case. 

On May 29, 1957, when the Board rendered decision in Matter of 

R—R—, supra, the Texas Adult Probation and Parole Law of 1947 

was codified under Article 781b of the Texas Code of Criminal Procedure. That statute was repealed by the 55th legislative session 

of 1957, effective 90 days after May 23, 1957 (Article V, section 35, 

55th Leg., Chapter 226, Acts of 1957). The present Adult Probation and Parole Law was enacted by the same legislative session 

in 1957. It is, in substance, similar to the former law, with modifications, and is codified as Article 781d, Code of Criminal Procedure 

(Vernon's Annotated Statutes, Code of Criminal Procedure, Article 781d, 1958 Supp.). We have looked to some pertinent provisions of the new law and have compared them with certain provisions 

of the former statute (Article 781b, Texas Code of Criminal Procedure), which we carefully considered in rendering our decision in 

Matter of supra, to detei mine if there is any change in 

probation procedure that would affect the finality of the sentence 

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rendered in this case on July 19, 1960 (Pino v. Landon, 349 U.S. 

901). 

Comparing the provisions of the Act of 1947 (Article 781b, Texas 

Code of Criminal Procedure) with current law, we note that the 

state courts of Texas are given the jurisdiction to determine when 

execution of sentence in certain cases (not excepted from discretion) shall be suspended, to determine the conditions of probation, 

and to determine the supervision of the probationers (section 1 of 

Article 781b, prior statute, which in substance is the same as sections 1 and 3 of Article 781d, Acts of 1957). The court having 

jurisdiction of the case may at any time during the period of probation alter or modify the conditions that the probationer has been 

given to observe (section 3 of Article 781b, prior statute, which is 

in substance the same as section 6 of Article 781d, Acts of 1957). 

Only the court in which a defendant was tried may grant probation, fix or alter the conditions of same, revoke the probation, or 

discharge the defendant, unless the court has transferred jurisdiction to another court (section 5 of Article 781d, Acts of 1957, similar 

to section 4 of Article 781b, the prior statute). 

The arrest of a defendant for violation of probation, hearing for 

revocation or continuance of probation, etc., is provided in section 8 

of Article 781d, Acts of 1957. No part of the time the defendant 

is on probation shall he considered as any part of the time that he 

shall be sentenced to serve. The right of the probationer to appeal 

to the Court of Criminal Appeals for a review of the trial and 

conviction, as provided by law, shall be accorded at the time he 

(the defendant) is placed on probation. When the defendant (after 

hearing before the court) is notified that his probation is revoked 

for violation of the conditions of probation, and he is called on to 

serve jail or penitentiary sentence, ho may appeal the revocation 

only. This section of the new law is almost precisely the same as 

section 5 of Article 781b, Acts of 1947. 

At the outset, it is important to note that the purpose of the 

Adult Probation and Parole Act of 1957 is to provide for the release of persons on parole and to designate the Board of Pardons 

and Paroles as the agency to recommend parole and to make investigations. The final purpose of the Act is to remove from existing 

statutes the limitations and the questions of constitutionality that 

have acted as barriers to the effective systems of probation and parole 

in the public interest, (Code of Criminal Procedure, Article 181d, 

section 1, Vernon's Texas Statutes, 1958 Supp.). 

It is important and material to note that in deciding that the 

Adult Probation and Parole Law of 1957 is not unconstitutional, 

the Texas Court of Criminal Appeals has held that the 1957 Act 

contains substantially the same provisions for granting and revoca174 
tion of probation and right of appeal (eon6dered important factors) 

as the superseded 1947 Act; and that the 1957 enactment, in effect, 

adopted construction placed on the prior statute by decisions of 

that court. Stratmon v. State, 333 S.W.2d 135. In view of the 

above-stated purposes of the new statute, and in view of the decision of the Texas Court of Criminal Appeals that the pertinent 

provisions of the new law of 1957 are substantially the same as the 

provisions of the prior Act of 1947 (Article 781b, Texas Code of 

Criminal Procedure), there is very little that remains to be said 

on the issue presented. 

With respect to finality of a conviction for deportation purposes 

(8 U.S.C. 1251(a) (4), the first part, Immigration and Nationality 

Act), where such conviction (judgment) took place in Texas, and 

probation occurred under the law and procedure set forth in Article 781b, Code of Criminal Procedure, we stated the general rule 

in Matter of R-1?—, supra, that conviction is final when "sentence" 

is pronounced on a verdict or plea of guilty; that a sentence imposed, but not executed (suspended), is nevertlielnhb a "sentence" 

(judgment) ; and that if suspension of execution of sentence and 

probation is subsequently revoked, no further sentence need be entered—execution of sentence must follow as if there had been no 

probation. In other words, the conviction on the plea or verdict 

of guilty was conipletely and finally adjudicated when the sentence 

was pronounced. Accordingly, we find that probation granted to 

respondent in this case under Article 781d, Texas Code of Criminal 

Procedure, the Adult Probation and Parole Act of 1957, can have 

no effect on the finality of conviction as long as the finding (verdict 

or plea) of guilt and sentence to punishment remain of record. 

Under Texas criminal procedure, suspension of execution of sentence and placement on probation by courts of that State is a matter 

that rests within the sound discretion of the trial court and follows 

conviction (final judgment). Ray v. State, 319 S.W.2d 705. Refusal to grant discretion is not appealable. Stratmon v. State, 

333 S.W.2d 135. Since there has been no change in the new Adult 

Probation and Parole Law of 1957 in Texas that affects the finality 

of judgment in this case, the decision by the special inquiry officer, 

predicated on Matter of 1?-4?—, supra, as precedent, is affirmed. 

The appeal will be dismissed. 

ORDER: It is ordered that the appeal be dismissed. 

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