Honorable Frank Briscoe

District Attorney Harris County Houston,Texas OpinionNo. C-492
Re: Constitutionalityof 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 InVernon's as Article 784a, Vernon's Code of Criminal Procedure,known as the Misdemeanor Probation Law of 1965.

Sections3, 4, 6 and 8 of theMisdemeanor Probation Law of 1965, read as follows:

"Sec.3. (a) A defendant:whohas been found guilty of a misdemeanorwherein themaximum permissiblepunishment is by confinement in jail or by a fine in excess of $200may be grantedprobation if: (1) he applies in writing to'the court for probation before trial; (2) he has never before been convicted in this or another jurisdictionof a felony or of a misdemeanor for ivhichthemaximum permissible punishment is by confinement in jail or exceeds a $200 fine; (3) he has not been granted probationnor been under probation under thisAct or any other Act in the preceding five years; (4) he has paid all costs of his trial and so much of any fine imposedas the court dlre,cts; and (5) the court believes that the ends of justice and the best interests of societyand of the defendantwill be servedby grantinghim probation.

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(b) If a defendant satisfies the reauirements of Section 3(a) (l), (2), (3), and (4)of this Act, and the juryhearing his case recommends probation in its verdict, the court must grant the defendantprobation. The court mav, however, extend the term of the probationaryperiod to any length of timenot exceeding themaximum time of confinementallowed by law. In the event probation is revoked in accordancewith Section 6, the judgment of the court shallnot prescribeany penalty in excess of that imposedby the jury. (c) A defendant'sapplication for probationmust bemade under oath and must also con tain statements (1) that he has never before been convicted in this or another jurisdictionof a felony or of a misdemeanor for which themaximum permissiblepunishment is by confinement in jail or exceeds a $200 fine, and (2) thathe has not been granted probation nor been under probation under thisAct or any otherAct in the preceding riveyears. The applicationmay contain what other information the court directs. (d) When a defendanthas 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 probationunder the terms of thisAct, 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 probationwas granted on the docket sheet or in theminutes 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 accordancewith Section 6 of thisAct."
"Sec.6. (a) If a probationerviolates any term of his probation, the courtmay cause his arrest by warrant as in other cases. The probationer upon arrest shall be brought promptlybefore the court causinghis arrest and the court,

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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 evidencewarrants. (b) On the date the probation is revoked, the finding of guilty becomes final and the court shall render judgment tnereonagainst the defendant The judgment shall be enforcedas in other cases and the time served on probationmay 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 revocationmay 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 juryhearing the case has recommendedprobation in its verdict and the defendanthas satisfied the requirements ;cf.Sf;ction

3(a) (l), (2), (31, and (4) of this

In passing on the validity of the Suspended SentenceLaw of the 33rd Legislature, the Court of CriminalAppeals, 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 offensehe should be punished as the act shouldprovide. *

. ."
It is our opinion that the probationprovisions of the Act in question constitutepart of the punishmentprovided by the -2Y27-Hon. Frank Briscoe, Page 4 (C-492)

Legislature to be inflicted on thosewho offend against our criminal laws and do not interferewith thepower of the Governor conferredby theprovisions of Section 11 of Article TV of the Constitution of Texas. Analyzing the provisions of theMisdemeanor Probation Law of 1965, in accordancewith theprinciple of law announced by the Court of CriminalAppeals in the foregoingcase, it is noted that the Legislaturehas prescribed thepunishment of a defendantwho has been round guilty of a misdemeanor and who falls within the provisions of Section 3 of saidAct, and has authorized the court to impose thepunishmentaccording to the terms and conditions of probation set out in Section 5 of theAct, and authorizes the court to imposeadditionalpunishment under the provisions of Section 6 if the probationerviolates any term of his probation. Furthermore, Section 8 of thisAct authorizes suchperson to appeal his convictionas in other cases. We are therefore of the opinion that theprovisions of theMisdemeanor ProbationLaw of 1965 constitutean exercise of legislativeauthority to define crimes and fix the punishment therefor,rather than an interference with the executivepower conferred by Section 11 ofArticle IV of the Constitutionof Texas. Section 11A ofArticle IV of the Constitution of Texas, added in 1935,provides:

"TheCourts of the State of Texas having original jurisdictionof criminal actions shall have thepower, after conviction, to suspend the imposition or execution of sentenceand to place the defendant upon probation and to reimpose such sentence,under such conditionsas the Legislaturemay prescribe." (EiiYiihZZEXEd).
In FX parte Hayden, 215 S.W.2d 620 (1948), the Court of CriminalAppeals construed theprovisions of Section 11A as follows: "Theprovisions of the Constitutionare

to be strictly construed and shouldbe allowed no liberality of meaning where suchprovisions 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

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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 differencebetween a judgmentand a sentence; and the Legislature,having before it theprevious enactments relative thereto, as well as Section 11A of Article IV of the State Constitution, evidentlyhad 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.
. . ." (Emphasisadded).
It is noted that Ex parte Hayden specificallyheld that theAdult 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 furthernoted, 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 theAdult Probation and Parole Act of the 50th Legislature were limited to the suspension of sentencesand 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 expressedno opinion concerning the power of the Legislature to enactprovisions authorisina Countv Courts and Countv Courts at Law to impose the punishmentprobided in House Sill 395, Acts of the ~~~~.~???$$~rkes not pas: on Likewise Waggoner v. State, 275 S.W.2d 821

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

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

You are thereforeadvised 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 ProbationLaw of 1965 are valid and constitutionai.

SUMMARY "-

Th provisions of House Bill 395, Acts of the Session, 1965, compiled inVernon'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

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