Honorable Rayford A. Ratliff 

Moore County Attorney 

P. 0. Box 634 

Dumas, Texas 79029 

Opinion No. JM-798 

Re: Whether a defendant is 

eligible for misdemeanor probation while he is serving a 

probated felony sentence 

Dear Mr. Ratliff: 

You ask: 

1. Does the term 'convicted' in article 42.12, 

3a(b), Texas Code of Criminal Procedure mean a 

'final conviction' as that term is developed in 

Texas case law? 

2. Is a criminal defendant eligible to apply 

for misdemeanor probation while he is on felony 

probation that has not been revoked and has not 

terminated by operation of law? 

Section 3a(b) of article 42.12(B). Texas Code of Criminal 

Procedure, provides: 

Where there is a misdemeanor conviction in any 

court of this state and the punishment assessed by 

the jury shall be by imprisonment in jail or by a 

fine or by both such fine and imprisonment, the 

jury may recommend probation for a period of time 

not to exceed the maximum imprisonment applicable 

to such offense of which the defendant is convicted, upon sworn motion made therefor by the 

defendant, filed before the penalty stage of the 

trial begins. When the jury recommends probation, 

it may recommend that the imprisonment or fine or 

both such fine and imprisonment found in its 

verdict may be probated. If the jury recommends 

probation for a person convicted of an offense 

under Article 67011-l. Revised Statutes, and 

punished under Subsection (c) of that article, it 

may recommend that any operator's, commercial 

p. 3772 
Ronarable Rayford A. Ratliff - Page 2 (JM-798) 

, 

operator's, or chauffeur's license issued to the 

defendant under Chapter 173. Acts of the 47th 

Legislature, Regular Session, 1941, as amended 

(Article 6687b. Vernon's Texas Civil Statues), not 

be suspended. When the trial is to a jury and the 

defendant has no counsel, the court shall inform 

the defendant of his right to make such motion, 

and the court shall appoint counsel to prepare and 

present same, if desired by the defendant. In no 

case shall probation be recommended by the jury 

except when the defendant, before the trial began, 

had filed a sworn statement that the defendant has 

never before been convicted of a felony, and after 

conviction and before the penalty stage of the 

trial benan, the. defendant- shali have filed a 

sworn mo;ion for probation and the proof shall 

show and the jury shall find in their verdict that 

the defendant has never before been convicted of a 

felony in this or any other state. This law is 

not to be construed as preventing the jury from 

passing on the guilt of- the def&dant,- b& the 

defendant may enter a plea of not guilty. In all 

eligible cases, probation shall be granted by the 

court. if the jury recommends it in their verdict. 

(Emphasis supplied.) 

Your questions appear to be limited to trials before a jury since 

in a trial before the court the judge 

when it shall appear to the satisfaction of the 

court that the ends of justice and the best 

interests of the public as well as the defendant 

will be subserved thereby, shall have the power, 

after conviction . . . to suspend the imposition 

of the sentence and may place the defendant on 

probation . . . . 

Code Grim. Proc. art. 42.12(B), 53. 

You call attention to the holding in Ex parte Murchison, 560 

S.W.2d 654 (Tex. Grim. App. 1978). that a conviction is not final for 

the purpose of enhancement of punishment where the imposition of 

sentence has been suspended and probation granted. A review of cases 

collected under the Texas Penal Code, sections 12.42 (Penalties for 

Repeat and Habitual Felony Offenders) and 12.43 (Penalties for Repeat 

and Habitual Misdemeanor Offenders), reflects that the holding in e 

parte Murchison is consistent with the holdings in a long line of 

cases which have addressed the necessity of proving the finality of a 

p. 3773 
Honorable Rayford A. Ratliff - Page 3 (JM-798) 

conviction before it can be used for enhancement of punishment for 

repeat offenders. 

In the event a probated sentence has been revoked it has been 

held to be a final conviction. Ex parte Murchison. supra. Your 

concern is directed to a scenario "here the defendant is on felony 

probation, and the probated sentence has neither been revoked nor 

terminated by operation of law. 

In Nealy v. State, 500 S.W.2d 122, 125 (Tex. Grim. App. 1973). it 

was stated: 

The judge or jury may grant probation only 

-after conviction. Article 42.12, Sec. 3, Vernon's 

Ann.C.C.P.; Article 42.12, Sec. 3a. supra. When 

the probation is granted only the imposition of 

the sentence is now suspended. See special 

commentary by Judge Onion on Article 42.12, 

V.A.C.C.P. Thus, the Adult Probation and Parole 

Law affects sentencing only, not conviction. 

In. Eines v. State, 495 S.W.2d 252 (Tex. Grim. App. 1973). the 

court addressed the question of a defendant's eligibility to apply to 

the jury for probation where he had been given a probated sentence, as 

follo"s: 

In his first ground of error appellant complains of the trial court's refusal to allow 

appellant to go to the jury at the punishment 

phase for possible assessment of a probation 

penalty. Article 42.12, Section 3a. Vernon's 

Ann.C.C.P., provides: 

'In no case shall probation be recommended 

by the jury except when a sworn motion and 

proof shall show . . . that the defendant 

has never before been convicted of a felony 

in this or any other state . . .' 

Appellant's motion for probation affirmatively 

shows that appellant had been given probation upon 

a conviction for the offense of possession of 

marihuana prior to the filing of his application 

for probation in the instant case. By his own 

motion, appellant admits facts that preclude a 

jury from recommending probation. 

While the above opinions concerned probation in felony cases, we 

perceive no distinction in the application and proof required in 

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Honorable Rayford A. Ratliff - Page 4 (JM-798) 

felony and misdemeanor cases in order for a jury to consider 

probation. Art. 42.12(B) subsections 3a(a) (felony) and 3a(b) 

(misdemeanor) contain identical substantive requirements for a 

defendant to be eligible for probation. Both provide: 

In no case shall probation be recomrmended' by the 

jury except when the defendant, before the trial 

began, had filed a sworn statement that the 

defendant has never before been convicted of a 

felony, and after conviction and before the 

penalty stage of the trial began, the defendant 

shall have filed a sworn motion for probation and 

the proof shall show and the jury shall find in 

their verdict that the defendant has never before 

been convicted of a felony in this or any other 

state. 

It is our opinion that the courts make a distinction in the meaning of 

the term conviction in determining eligibility for probation under 

section 3a of article 42.12(B) and the meaning of final conviction as 

that term is used in determining whether a prior conviction may be 

used for enhancement of punishment. 

SUMMARY 

A criminal defendant is not eligible to apply 

for a recommendation of probation from a jury in a 

misdemeanor case while the defendant is on felony 

probation. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STZAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 3775