. . .- _ 

EA OIWEY GENERAL 

OF TEXAS 

February 15, 1967 

Honorable R. A. Richardson 

District Attorney 

88th Judlclal District 

Kountze, Texas 

Dear Mr. Richardson: 

Opinion No. M-27 

Re: Under proper clraumstances, 

may a defendant who 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 suspended sentence reduced or terminated by the 

court, after having satlsfactorlly completed the 

period set out by such 

Article? 

You have requested an opinion from thle office on the 

following question: 

"Under proper circumstances, may a defendant, who received a five year suspended sentence 

before the new Code of Criminal Procedure became 

effective January 1, 1966, be subject to having 

his suspended sentence reduced or terminated by 

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 suspended sentence 

was given, Article 776a, Vernon88 md7 Code of Criminal Procedure, 

provided for the d.efendanto under FeerFain conditions, to request 

a suspended sentencep and granted the court the right and power 

to suspend sentence of the defendant during 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 expfratlon of the time assessed as punishment by the jury, the defendant 

may make his written sworn motion for a new trial 

and dismissal of such case* stating therein that 

since such former trial and conviction he has 

not been convicted of any felony, which motion 

shall be heard by the court during the first 

term time after same 'is filed. If It appears: 

to the courts upon such hearing, that the dePendant has not been convicted ~of any 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 conviction as herein provided for, the fact 

of such conviction shall not be shown or Inquired 

Into for any purpose except in cases where the 

defendant has been again Indicted for a felony 

and invokes the benefit of thls,law." 

. 

The present Code of Criminal Procedure repealed the 

application of Article 776a and 780 to judgments entered after 

its adoption. Such repeal, however, does not affect the provisions of Article 780 granting defendants a new trial and dlsmissal of the cause In cases where the judgment was entered prior 

to its repeal; to hold otherwise would violate the constitutional 

provision which prohibits the passage of retroactfve laws which 

takes away or Impairs vested rights acquired under exfst%ng laws. 

Article I, Section 16, Texas Constitution. 

In the case of Rx Parte' Plttman, 248 S.W.2d 159, (Tex. 

Grim, 1952) construing Armcma, the old suspended sentence 

law, and its relation to the Adult Probation Law, the court held 

that the two laws cannot be merged but they were two separate and 

Independent acts. 

The.Leglslature In 1965 fn enactfn ~the neiv Code ~of 

Criminal Procedure Included therein Article fi 2,12, which Is the 

new Adult Probation and Parole Law: Section 35, below quoted, 

reveals that It does not apply ~to the 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 

effective date of this Code shall be amenable to 

the provisions of 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 sentence before January 1, 1966, 

is subject to having the same terminated under 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 Imposed uEdeFthe Suspended Sentence Law. 

SUMMARY 

An Individual who has received a suspended 

sentence under Article 776a, Vernon's old C,C.P,, 

in force at that time, may not have his sentence 

reduced or terminated under Section 7 of Article 

42,12 &iezT Code of Criminal Procedure, 

Prepared by William J, Craig 

Assistant Attorney 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,