: 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 a perron who 

Cuero, Texam 77954 rsceivee a felony probated 

rentence under Article 

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

may under certain circumatanccr receive a recond 

Deer Mr. Cheatham: felony probated eentence. 

You have requcrtad the opinion of thir office on the following quertions: 

“(1) If e perron receivea a felony probeted sentence 

for a violation of the narcotic law under Penal Code, Article 725b, Section 23(e). may a judge grant him another 

probeted eentence for e later felony violation of Article 

725b? 

“(2)” Mey l defendant who her received e felony 

probated l entence under Penal Code, Article 125b end 

whose probetionery rentence haa run out by the kpre 

of time. then receive a second felony probationary 

sentence for either unlawful poeeeerion of a nercotic 

drug (a felony) or rale of a narcotic drug (a felony)? 

"(3) May a defendant who bar received a felony 

probationary sentence and had him probation terminated 

by the court under C. C. P., Article 42.14, Section 7, 

receive a n ecoad felony probated l entenca for a felony 

conviction or either poereaeion or rat of narcotic 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 10 years nor more than life. Suspended 

rentence or prohation under the Adult Probation and 

Parole Law in not availeble to a peraon 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 

of Article 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 im insufficient to 

support the conviction. 

. . . 

“The mandate off Article 42.02, V. T. C. C. P.] 

requires that the sentence order the judgment of the 

court be carried into execution. In a felony case, 

the skntence is the final judgment of conviction, without which there is no final 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 the judgment be carried into execution. 

Section 3 of 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 

that article. 

Your recond and third queetionr concern the eituation where a . 

probated defendant hae completed hie full period of probatidn by the lap?= .’ 

of time or hae had hir probation terminated by the court under Article 

42.12, Section 7,’ V. T. C.C. P. , which provider in part: 

“At any time, after the defendant haa l atimfactorily 

completed one-third of the 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, and in 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 which would eerve to enhance the 

punishment for a second conviction. Therefore, 

a person who received a probated renteocc under 

Article 725(b), Section 23(c), V. T. P. C., may 

receive a second proheted sentence before the 

expiration of the period of probate for the prior 

sentence, before he has concluded hir period of 

probation by lapse of time or hae had the period 

altered by order of the court. 

Very truly your*. 

General of Teur 

APP&qVED: 

lb--d-w 

DAVID M. KENDALL, Chairman 

Opinion Committee