HonorableRayfordA. Ratliff

Moore CountyAttorney P. 0. Box 634 Dumas, Texas 79029 OpinionNo. JM-798
Re: Whether a defendant is eligible for misdemeanor probation while he is serving a probated felony sentence
DearMr. 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 Is a criminal defendant eligible to apply for misdemeanor probation while he is on felony probation that has not been revoked and has not terminatedby operationof law?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 stateand thepunishmentassessedby the jury shallbe by imprisonmentin jail or by a fine or by both such fine and imprisonment, the jurymay recommendprobation for a period of time not to exceed the maximum imprisonmentapplicable to such offense of which the defendant is convicted, upon sworn motion made therefor by the defendant, filed before the penalty stage of the trialbegins. When the jury recommendsprobation, itmay recommend that the imprisonmentor 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

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operator's, or chauffeur's license issued to the defendant under Chapter 173. Acts of the 47th Legislature, Regular Session, 1941, as amended (Article6687b.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 toprepare and present same, if desired by the defendant. In no case shall probation be recommended by the jury exceptwhen the defendant,before the trialbegan, had filed a sworn statement that thedefendanthas neverbeforebeen convictedof 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 theirverdict that thedefendanthas never beforebeen convictedof 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 defendantmay enter a plea of not guilty. In all eligible cases, probation shall be granted by the court. if the jury recommends it in theirverdict. (Emphasissupplied.)
Your questionsappear tobe limited to trialsbefore a jury since in a trialbefore 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 sentencehas been suspendedand 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 (Penaltiesfor Repeat and Habitual Misdemeanor Offenders), reflects that the holding in e parte Murchison is consistent with the holdings in a long line of caseswhich have addressed the necessity of proving the finality of a

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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 terminatedby operationof law.
InNealy v. State, 500 S.W.2d 122, 125 (Tex.Grim.App. 1973). it was stated: The judge or jury may grant probation only

-afterconviction. 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 sentencingonly,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 forprobationwherehe had been givena 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'smotion for probation affirmatively shows that appellanthad been givenprobationupon 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 recommendingprobation. While the above opinions concernedprobation in felony cases,we perceive no distinction in the application and proof required in

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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 tobe eligible forprobation. Bothprovide:

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 swornmotion for probation and the proof shall show and the jury shall find in theirverdict that the defendant has never before been convicted of a felony in this or any other state.
It is our opinion that the courtsmake a distinction in themeaning of the term conviction in determining eligibility for probation under section 3a of article 42.12(B) and themeaning of final convictionas that term is used in determining whether a prior conviction may be used for enhancementof punishment.
SUMMARY
A criminal defendant is not eligible to apply for a recommendationof probation from a jury in a misdemeanor case while the defendant is on felony probation.

JIM MATTOX AttorneyGeneral of Texas
MARY KELLER ExecutiveAssistantAttorney General
JUDGE ZOLLIE STZAKLEY SpecialAssistantAttorney General
RICK GILPIN Chairman,OpinionCommittee Preparedby Tom G. Davis AssistantAttorney General

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