: J 

# THE 

# AITOFUWEY GENERAL OILF TrExAs

J&e Il. 1973 The Honorable Wiley L. Cheatham O~~B~OB 

### No. H- 48 District **Attorney** 

### 24th Judicial Dietrict Re: Whether aperron who 

### Cuero, Texam77954 rsceivee afelony probated rentence underArticle 725b, Section 23(a), V. T.P.C., may under certain circumatanccr receive a recond Deer Mr. Cheatham: felony probated eentence. Youhave requcrtad theopinion ofthir office onthefollowing quertions:

“(1) Ife perron receivea afelony probeted sentence for aviolation ofthenarcotic law under Penal Code, Article 725b, Section 23(e). may ajudge grant him another probeted eentence 

### fore later felony violation ofArticle 725b?

“(2)” Mey l

### defendant whoher received e felony probated l

### entence under Penal Code, Article 125b end whose probetionery rentence haa runoutbythe kpre oftime. **then receive**  **a** 

### second felony **probationary** 

### sentence for either unlawful poeeeerion ofanercotic drug **(a**

### felony) or rale of **a narcotic**  **drug (a** 

### felony)? 

### "(3)May adefendant whobar received afelony probationary sentence andhad **him probation**  

### terminated bythe court under C.C. P., 

### Article 42.14, Section 7, receive a n

ecoad felony probated l entenca for afelony conviction 

### oreither poereaeion or rat ofnarcotic drugr under.Penal Coda 725b? ‘I

**p. 198** **The Honorable**  Wiley L. Cheatham, page 2 (H-48)

Article 725b, Section 23(a), V. T. P. C., provides:

“Except ae provided in Subeectionn (b) and (c) of this section, any person who violates 

### l ny provision of thin Act is guilty of a felony and upon e first conviction ie punishable by imprironment in the peniten- ‘
. tlary for not leei’ than two yeara nor more’ than life; end upon a second or rubrequent 

### conviction, he ie punishable by imprisonment in the penitentiary for not leer than 10years nor more than life. Suspended rentence or prohation under the Adult Probation and Parole Law in not availeble to 

### aperaon upon a ,eecond or clubsequent conviction. ” This statute ueee the same language regarding both enhanced eentences and the availability of probation. ‘I.
. . upon a second or subsequent conviction. ” Both probation and the possibility of an enhanced sentence are dependent upon whether there was e prior conviction for a violation of this act. It is our opinion that the Legislature, **by** thie uoe of the same language in these two auccesrive sentencee, intended that the came meaning for “conviction” apply in both eituationr. Because this article provides for enhanced punishment for second and subsequent violations of the Narcotic Drug Act, it has been held that a prior violation may **not** be used to enhance punishment under the provisiona 

### ofArticle 62 and 63, V. T. P. C. Heredia v. State, 468 S. W. td 833 (Tex. Crim. 1971). However, authoritative interpretationr of Article 63, V. T. P. C., may **be**helpful in understanding it. Article 63, V. T. P. C., provide*:

“Whoever shall have **been** three timer convicted of a felony leer than capital ehall on ruch third convictioh be imprironed for life in the penitentiary. ” Like Article 725b. it predicater enhanced punirhment upon a prior conviction or convictions. In White v. State, 353 S.W. 2d 229 (Tex. Crim.

**p. 199** The Honorable Wiley L. Cheatham, page 3 (H-48)

1962), the court considered the iarue of what conatitutea a prior conviction under Article 63, V. T. P. C., and came to the following conclurion: “The pronouncement of sentence upon the defendant in all felony cases lear than capital in errsential to a final judgement of conviction. In the absence of any evidence showing a final conviction of the appellant in the two prior convictions alleged for enhancement, the evidence iminsufficient to support the conviction.

**. .**  **.** “The mandate off Article 42.02, V. T. C. C. P.] requires that the sentence order thejudgment of the court be carried into execution. In **a**felony case, the skntence is the final judgment of conviction, without which there is nofinal conviction. ” It is therefore clear that, for purpoee.9 of enhancing punishment for prior convictions, the prior conviction must be one that ia final, meaning aantence has been pronounced ordering thejudgment be carried into execution. Section 3of Article 42.12, V. T. C.C. P., provideo in part:

9,

. . . **(Clourts**
**. .**  **.** shall have the

### powers, after conviction or a plea of guilty
. , ., to 

## l uepend the imporition of the sentence and place the defendant on probation
. . , .” Under the probation law, sentence io not pronounced but in deferred. See Tee1 v. State, 432 S. W. 2d 911(Tex. Crim. App. 1968). Therefore a sentence which has been probated is not final and ir not a conviction for purposes of enhancement under Article 725(b), V. T. P. C., nor for purpoaer of preventing probation thereunder. We therefore **answer your**  first question that a person who is under probated sentence for a violation of Article 725b. Section 23 (a), V. T. P. C.,

p. 200. .



### The Honorable Wiley L. Cheatham, page 4 (H-48)

may be granted another probated l 

### eotence for a 

### later felony violation of thatarticle. **Your** 

### recond **and** 

### third queetionr concern theeituation where a 

### . probated defendanthae completed hie full period ofprobatidn bythe lap?=
.’ oftime **or** 

### haehadhir probation terminated bythecourt underArticle 42.12, Section 7,’ V.T.C.C. P., which provider inpart:

**“ At**  

### anytime, after the defendant haa 

## l atimfactorily 

### completed one-third ofthe original probationary 

### period or two year@ of probation, whichever ia the **leraer,** the period of probation may **be** reduced or terminated by the 

### court. Upon the satisfactory fulfillment of the conditions of probation, and the expirationof the period of probation, the court, by order duly entered, shall amend or modify the original sentence imposed, if necerrary, to conform to the probation period, and shall dircharge the defendant, ” Where the defendant hao satisfactorily completed hi8 period of

### probation, the **court** ie required to discharge him, 

### andin fact never pronouncee sentence ordering execution of the judgment of the **court,** aa would constitute a final judgment of conviction sufficient to clupport enhancement. See White v. State, **supra.** It ia therefore our opinion that a defendant who haa successfully completed by lapse of time a prior probated sentence for a violation of Article 725b, Section 23(a), V. T. P. C., ia not thereby prohibited from receiving a second probated sentence for a felony conviction thereunder. Similarly, to answer your third question, where the 

### prior probationary sentence bar been terminated by **court** order under Section 7, Article 42.12, V.T.C.C.P., the defendant ia eligible to receive a recond felony probated rentence for a felony conviction for either poreerrion or rale of narcotics drug* under Penal Code, Article 725b. SUMMARY Under Article 42.12, Vernon’6 Texan Code of Criminal Procedure, a probated sentence 

### ir not**a**

**p. 201** .



### The Honorable Wiley L. Cheatham, page 5 (~-48)

final conviction whichwouldeerve toenhancethe punishment for a second conviction. Therefore, aperson whoreceived a probated renteocc under Article 725(b), Section 23(c), V. T.P.C., may receive a second proheted sentence before the expiration oftheperiod ofprobate for theprior sentence, before hehas concluded hir period of probation bylapse oftime **or** 

### hae hadtheperiod altered byorder ofthecourt. Very truly your*.

General ofTeur APP&qVED: 

# lb--d-w DAVID **M.** 

### KENDALL, Chairman Opinion Committee