Honorable Frank Briscoe 

District Attorney 

Harris County 

Houston, Texas 

Opinion No. C-492 

Re: Constitutionality of the 

Misdemeanor Probation Law 

of 1965. 

Dear Mr. Brlscoe: 

You have requested our opinion on the validity of House 

Bill 395, Acts of the 59th Legislature, Regular Session, 1965, 

Chapter 164, page 346, compiled In Vernon's as Article 784a, 

Vernon's Code of Criminal Procedure, known as the Misdemeanor 

Probation Law of 1965. 

Sections 3, 4, 6 and 8 of the Misdemeanor Probation Law 

of 1965, read as follows: 

"Sec. 3. (a) A defendant:who has been found 

guilty of a misdemeanor wherein the maximum permissible punishment is by confinement in jail or by a 

fine in excess of $200 may be granted probation if: 

(1) he applies in writing to' the court for 

probation before trial; 

(2) he has never before been convicted in 

this or another jurisdiction of a felony or of a 

misdemeanor for ivhich the maximum permissible 

punishment is by confinement in jail or exceeds a 

$200 fine; 

(3) he has not been granted probation nor 

been under probation under this Act or any other 

Act in the preceding five years; 

(4) he has paid all costs of his trial and 

so much of any fine imposed as the court dlre,cts; 

and 

(5) the court believes that the ends of justice and the best interests of society and of the 

defendant will be served by granting him probation. 

-2325- 
Hon. Frank Briscoe, page 2 (C-492) 

(b) If a defendant satisfies the reauirements of Section 3(a) (l), (2), (3), and (4) of 

this Act, and the jury hearing his case recommends 

probation in its verdict, the court must grant 

the defendant probation. The court mav, however, 

extend the term of the probationary period to any 

length of time not exceeding the maximum time of 

confinement allowed by law. In the event probation is revoked in accordance with Section 6, the 

judgment of the court shall not prescribe any 

penalty in excess of that imposed by the jury. 

(c) A defendant's application for probation must be made under oath and must also con 

tain statements (1) that he has never before been 

convicted in this or another jurisdiction of a 

felony or of a misdemeanor for which the maximum 

permissible punishment is by confinement in jail 

or exceeds a $200 fine, and (2) that he has not 

been granted probation nor been under probation 

under this Act or any other Act in the preceding 

rive years. The application may contain what 

other information the court directs. 

(d) When a defendant has applied for probation, the court during the trial of his case 

must receive competent evidence concerning the 

defendant's entitlement to probation 

"Sec. 4. (a) When a defendant is granted 

probation under the terms of this Act, the finding of guilty does not become final, nor may the 

court render judgment thereon, except as provided 

in Section 6 of this Act. 

(b) The court shall record the fact and date 

that probation was granted on the docket sheet or 

in the minutes of the court. The court shall also 

note the period and terms of the probation, and 

the details of the judgment. The court's records 

may not reflect a final conviction, however, unless probation is later revoked in accordance with 

Section 6 of this Act." 

"Sec. 6. (a) If a probationer violates any 

term of his probation, the court may cause his 

arrest by warrant as in other cases. The probationer upon arrest shall be brought promptly before the court causing his arrest and the court, 

-2326- 
_ -. 

Hon. Frank Briscoe, page 3 (C-492) 

upon motion of the state and after a hearing 

without a jury, may continue, modify, or revoke the probation as the evidence warrants. 

(b) On the date the probation is revoked, 

the finding of guilty becomes final and the 

court shall render judgment tnereon against the 

defendant The judgment shall be enforced as in 

other cases and the time served on probation may 

not be credited or otherwise considered for any 

purpose." 

"Set 8. (a) A probationer, at the time he 

is granted probation, may appeal his conviction 

as in other cases. He may also appeal the revocation of his probation, but the revocation may 

not be set aside on appeal without a clear showing of abuse of discretion by the revoking court. 

(b) The refusal of a court to grant probation is not appealable unless the jury hearing 

the case has recommended probation in its verdict 

and the defendant has satisfied the requirements 

;cf.Sf;ction 3(a) (l), (2), (31, and (4) of this 

In passing on the validity of the Suspended Sentence Law 

of the 33rd Legislature, the Court of Criminal Appeals, in E%ker 

v,,State, 158 S.W. 998 (1913) stated: 

_.A... 

"There is no doubt but what the Constitution confers upon the Governor the sole and exclusive right to grant pardons, and that the 

Legislature, courts, nor juries can usurp nor 

have that authority conferred on them. But the 

Constitution also confers upon the Legislature 

the authority and power to define crimes and 

fix the punishment therefor, and when they enact 

a law defining a crime and fixing the penalty, 

unless vetoed by the Governor, it becomes the law 

of the land. They would have the authority and 

power to define burglary as an offense, and provide that when a person is charged with the.orfense he may, by showing that this was his first 

offense, be noif’~inidhetl at all, but that for 

the second or any subsequent offense he should 

be punished as the act should provide. * . ." 

It is our opinion that the probation provisions of the 

Act in question constitute part of the punishment provided by the 

-2Y27- 
Hon. Frank Briscoe, Page 4 (C-492) 

Legislature to be inflicted on those who offend against our 

criminal laws and do not interfere with the power of the Governor conferred by the provisions of Section 11 of Article TV of 

the Constitution of Texas. 

Analyzing the provisions of the Misdemeanor Probation Law 

of 1965, in accordance with the principle of law announced by the 

Court of Criminal Appeals in the foregoing case, it is noted that 

the Legislature has prescribed the punishment of a defendant who 

has been round guilty of a misdemeanor and who falls within the 

provisions of Section 3 of said Act, and has authorized the court 

to impose the punishment according to the terms and conditions of 

probation set out in Section 5 of the Act, and authorizes the 

court to impose additional punishment under the provisions of 

Section 6 if the probationer violates any term of his probation. 

Furthermore, Section 8 of this Act authorizes such person to appeal his conviction as in other cases. We are therefore of the 

opinion that the provisions of the Misdemeanor Probation Law of 

1965 constitute an exercise of legislative authority to define 

crimes and fix the punishment therefor, rather than an interference with the executive power conferred by Section 11 of Article 

IV of the Constitution of Texas. Section 11A of Article IV of 

the Constitution of Texas, added in 1935, provides: 

"The Courts of the State of Texas having 

original jurisdiction of criminal actions shall 

have the power, after conviction, to suspend 

the imposition or execution of sentence and to 

place the defendant upon probation and to reimpose such sentence, under such conditions as 

the Legislature may prescribe." (EiiYiihZZEXEd). 

In FX parte Hayden, 215 S.W.2d 620 (1948), the Court of 

Criminal Appeals construed the provisions of Section 11A as follows: 

"The provisions of the Constitution are 

to be strictly construed and should be allowed 

no liberality of meaning where such provisions 

are to be passed upon and are plain and unambiguous . Notice is therefore taken of the word 

'sentence' in the above amendment. 

"'Judgment' and 'sentence' are not the same 

thing; the two are distinct and independent. In 

misdemeanor cases, a verdict of guilty is itself 

the judgment of conviction. No formal sentence 

is required. A formal sentence is not necessary 

-2328- 
Hon. Frank Briscoe, page 5 (C-492) 

in a prosecution for a misdemeanor. In felony ', 

cases, it is the duty of the judge to pronounce 

sentence on the judgment of conviction, and the 

sentence is in fact the final judgment of the 

case. See 12 Tex.Jur., p. 717, sec. 355, and 

p. 685 set, 334, idem; also Articles 782, 783, 

and 784 C.C.P. In Chapter 3 under Title 9, 

C.C.P., relating to jud 

t? 

ent and sentence in 

cases of felony, Art. 7 7, reads as follows: 

'A "sentence" is the order of the court, made 

in the presence of the defendant, and entered of 

record, pronouncing the judgment, and ordering 

the same to be carried into execution in the manner prescribed by law.' 

"It appears, therefore, that there exists 

a difference between a judgment and a sentence; 

and the Legislature, having before it the previous enactments relative thereto, as well as 

Section 11A of Article IV of the State Constitution, evidently had such in mind when it passed 

House Bill No. 120, and only referred to Isen 

tences' and refrained from the use of the word 

'judgment'. Under such a condition, we express 

;!!!5&p&!$-ytt~ q$ 

, 

i;$ ¶ iF;;; pj,, 

Courts, or County Courts at Law with criminal 

$risdiction In this state. . . ." (Emphasis added). 

It is noted that Ex parte Hayden specifically held that the Adult 

Probation and Parole Act of the 50th Legislature did not apply 

to judgments in the County Courts or County Courts at Law with 

criminal jurisdiction in the State. It is further noted, however, 

that Ex parte Hayden did not modify the principles of law announced in Bakery State, supra, which principles of law are applicable not only to felony cases but misdemeanor cases. Ex parte 

Hayden merely held that the provq~sions of the Adult Probation and 

Parole Act of the 50th Legislature were limited to the suspension 

of sentences and did not apply to the suspension of judgment, 

and therefore could not apply to County Courts or County Courts 

at Law with criminal jurisdiction. Ex parte Hayden expressed no 

opinion concerning the power of the Legislature to enact provisions authorisina Countv Courts and Countv Courts at Law to 

impose the punishment probided in House Sill 395, Acts of the 

~~~~.~???$$~rkes not pas: on 

Likewise Waggoner v. State, 275 S.W.2d 821 

th e constitutional authority of 

the Legislature to define the crime and fix the punishment'therefor, as provided in House Bill 395, Acts of the 59th Legislature 

-2329- 
-. . 

Hon. Frank Briscoe, page 6 (C-492) 

You are therefore advised that it is our opinion that the 

validity of House Bill 395 of the 59th Legislature is governed 

by the principles of law announced~ in Baker v. State, supra. 

Applying such principles, you are advised that the provisions of 

the Misdemeanor Probation Law of 1965 are valid and constitutionai. 

SUMMARY "- 

Th provisions of House Bill 395, Acts of the 

Session, 1965, 

compiled in Vernon's 

Code of Criminal 

Procedure, known as the Misdemeanor Probation 

Law of 1965, are valid and constitutional. 

Baker v. State, 158 S.W. 998 (1913). 

Yours very truly, 

WAGGONER CARR 

Attorney General 

By++ L,' 

John Reeves 

Assistant 

JR:ms 

APPROVED: 

OPINION COMMITTEE 

W. 0. Shultz, Chairman 

Roger Tyler 

Bob Flowers 

Harold Kennedy 

Lonnie Zweiner 

APPROVED FOR THE ATTORNEY GENERAL 

By: T. B. Wright 

-2330-