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EA OIWEY GENERAL OF TEXAS

February 15, 1967

HonorableR. A. Richardson DistrictAttorney 

### 88th JudlclalDistrict Kountze, Texas

Dear Mr. Richardson: OpinionNo. M-27
Re: Under proper clraumstances, may a defendantwho received a five year suspended sentence before the new Code of Criminal Procedure came Into effect, come within Section 7 of Article 42.12 of the new Code, and have his suspendedsentencereduced or terminatedby the court, after having satlsfactorlly completedthe period set out by such Article?
You have requested an opinion from thle office on the followingquestion:

"Underproper circumstances, may a defendant, who received a five year suspended sentence before the new Code of Criminal Procedurebecame effectiveJanuary 1, 1966, be subject to having his suspended sentencereduced or terminatedby the court after having satisfactorily completed the term or period provided In Secj?on 7# Article 42.12s Code of Criminal Procedure.
The law In effect at the time the suspendedsentence was given, Article 776a, Vernon88 md7 Code of Criminal Procedure, provided for the d.efendanto under FeerFain

conditions,to request a suspended sentencepand granted the court the right and power to suspend sentenceof the defendantduring his good behavior.
provided:Article 780, Vernon's &la7 Code of Criminal Procedure

- 113-Hon. R. A. Richardson,page 2 (M-27)

"In any case of suspended sentence,at any time after the expfratlonof the time assessed as punishmentby the jury, the defendant may make his written swornmotion for a new trial and dismissal of such case* stating therein that since such former trial and convictionhe has not been convictedof any felony, which motion shall be heard by the court during the first term time after same 'isfiled. If It appears: to the courts upon such hearing, that the dePendanthas not been convicted ~ofany other felony, the court sha,ll enter.an order reciting : the fact, and shall grant the defendanta'new trial and shall then dismiss said cause. After the setting aside and dismissal of any judgment of convictionas herein provided for, the fact of such convictionshall not be shown or Inquired Into for any purpose except in cases where the defendanthas been again Indicted for a felony and invokes the benefit of thls,law." .

The present Code of Criminal Procedurerepealed the applicationof Article 776a and 780 to judgmentsentered after its adoption. Such repeal, however, does not affect the provisions of Article 780 grantingdefendantsa new trial and dlsmissal of the cause In cases where the judgmentwas entered prior to its repeal; to hold otherwisewould violate the constitutional provisionwhich prohibits the passage of retroactfvelaws which takes away or Impairs vested rights acquiredunder exfst%ng laws. Article I, Section 16, Texas Constitution.

In the case of Rx Parte' Plttman, 248 S.W.2d 159, (Tex. Grim, 1952) construingArmcma, the old suspended sentence law, and its relation to the Adult ProbationLaw, the court held that the two laws cannot be merged but they were two separateand Independent

acts. The.Leglslature

In 1965 fn enactfn ~theneiv Code ~of Criminal ProcedureIncluded thereinArticle fi 2,12, which Is the new Adult Probationand Parole Law: Section 35, below quoted, reveals that It does not apply ~tothe old suspended sentence law.

'Sec. 35. This Article shall not be deemed' to alter OP fnva

1 a e an er 0 flxed under statutes in force prior to the effective date of this Code or to limit the,jurSsprt to modify or terminate su:h probationary

period. In other respects,persons placed on probatfon or parole prfor to the effectivedate of this Code shall be amenable to the provisionsof this Code insofar as it may be

- 114,-Hon. R. A. Richardson,page 3 ,(M-27)

It Is the opinion of this office that an lndlvldual who has received a suspended sentencebefore January 1, 1966, is subject to having the same terminatedunder Article 780 of the old Code of Criminal Procedure In effect at the time of granting said suspended sentence 9 and the court has no authority und.er Section 7 of Article 42.12 fiewT.Code of Criminal Procedure, to reduce said sentence ImposeduEdeFthe Suspended Sentence Law.
SUMMARY
An Individualwho has received a suspended sentenceunder Article 776a, Vernon's old C,C.P,, in force at that time, may not have his sentence reduced or terminatedunder Section 7 of Article 42,12 &iezT Code of Criminal Procedure,

Preparedby William J, Craig AssistantAttorney General General of Texas

APPROVED: OPINION COMMITTEE Hawthorne Phillips,Chairman W, V. Geppert, Co-Chairman Robert Owen John Banks Lonny Zwlener Sam Kelley
STAFF LEGAL ASSISTANT A. J. Carubbl, Jr,