Honorable  Doug Crouch                  Opinion      No. C-587
District  Attorney
Tarrant County                          Re:     Whether Article   37.07 of
Port Worth, Texas                               the 1966 Code of Criminal
                                                Procedure  is applicable   to
                                                misdemeanor cases tried    in
Dear Sir:                                       county courts?

         In your recent    letter   to this office you requested  an
opinion  as to whether Article      37.07 of the 1966 Code of Crimi-
nal Procedure   is applicable     to misdemeanor cases tried   in
county courts.

            Article    37.07   reads   as follows:

            Verdict    must be general;       separate    hearing   on
            proper    punishment.

                "1.  The verdict   in every criminal    action
            must be general.     When there are special     pleas
            on which a jury is to find,     it must say in its
            verdict  that the allegations     in such pleas are
            true or untrue.     If the plea is not guilty,      It
            must find that the defendant      is either  guilty
            or not guilty.

                "2.    Alternate    procedure

                "(a)    In felony     cases less than capital         and
            in capital     cases where the State has made It
            known that it will not seek the death penalty,
            and where the plea is not guilty,            the judge
            shall,   before    the argument begins,        first    sub-
            mit to the jury the Issue as to the guilt                or
            innocence    of the defendant        of the offense      or
            offenses    charged,    without    authorizing      the jury
            to pass upon the punishment to be imposed;                pro-
            vided,   however,     that in the charge which sub-
            mits the issue of guilt         or innocence      there
            shall be included       instructions     showing the jury
            the punishment provided         by law for each offense
            submitted.

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Honorable     Doug Crouch,     page   2 (c-587)



                “(b)     If a finding     of guilty     is returned,
            It shall    then be the responsibility           of the
            judge to assess       the punishment applicable          to
            the offense      charged where the same is not
            absolutely     fixed by law to some particular
            penalty    except when the defendant,           upon the
            return of a finding         of guilty,     requests   that
            the punishment be assessed           by the same jury.
            In the event the defendant           elects    to have the
            jury fix the punishment in cases where the
            punishment Is fixed by law, the court shall
            instruct    the jury that if they find the de-
            fendant    Is the same person who was convicted
            in the prior      conviction    or convictions      al-
            leged for enhancement,         they should set his
            punishment as prescribed         by law.

                “Regardless   of whether the punishment be
            assessed   by the judge of the jury,       evidence
            may be offered    by the State and the defend-
            ant as to the prior     criminal    record of the
            defendant,    his general   reputation    and his
            character.

                “(c)     After the introduction      of such evi-
            dence has been concluded,         and if the jury
            has been selected       to assess   the punishment,
            the court shall      give such additional     written
            Instructions      as may be necessary     and the
            order of procedure       and the rules governing
            the conduct of the trial        shall   be the same
            as are applicable       on the issue of guilt     or
            innocence.

                 “(d)     In cases where the matter of punish-
            ment is referred        to the jury,    the verdict   shall
            not be complete       until    the jury has rendered a
            verdict     both on the guilt      or innocence    of the
            defendant       and the amount of punishment,       where
            the jury finds       the defendant     guilty.   In the
            event the jury shall fail          to agree,   a mls-
            trial     shall   be declared,    the jury shall be
            discharged,       and no jeopardy     shall attach.

                “(e)    When the judge assesses      the punish-
            ment , and after    the hearing   of the evidence
            hereinabove    provided  for,   he shall    forthwith

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Honorable     Doug Crouch,      Page 3 (C-587)



            announce his decision in open             court    as to
            the punishment to be assessed.

                "(f)    Nothing herein shall     be construed
            as affecting     the admisslblllty     of extraneous
            offenses    on the question     of guilt   or inno-
            cence. '

          Notice is made initially      that there is no direct  refer-
ence to misdemeanors     in the above quoted article,    and the ques-
tion of its applicability     to such crimes naturally    arises  as
evidenced   by your opinion    request.

           In answering      this question,       it should be observed           that
the new Code of Criminal           Procedure,     effective      January 1, 1966,
purports    to embrace all the rules and provisions                  relating,to
criminal    procedure    and governing        the trial     of criminal      cases
in Texas (Articles       I,03    and 54.02 of the Code).             Although Arti-
cle 5Q.02 of the new Code specifically                provides      that the Civil
Statutes    and the Penal Code, which contain               special     or specific
provisions     of criminal      procedure     covering     specific     Instances
are not repealed       by this Act, a search of the Penal Code and
Vernon's    Civil   Statutes     reveals   no procedural         rules covering
the conduct of the trial           of misdemeanor cases with respect                 to
the means of returning          a verdict     and assessing       punishment.        It
might be added that the Constitution                of Texas is equally          si-
lent In this regard.          Accordingly,       the new Code of Criminal
Procedure    must be examined in order to determine                  the rules con-
trolling    the conduct of a misdemeanor prosecution                   and particu-
larly    in connection     with requirements         governing      the return of
a jury verdict      and the setting       of punishment in such cases.

           Returning      to our examination         of Article     37.07,     it is
seen that the contents          of this provision          relate   to verdicts
in criminal       cases,   the Article      containing      procedures      regulat-
ing the finding        of guilt     or innocence       and the assessment         of
punishment in these cases.             33y its terms the Article            applies
only where a jury has not been waived and the defendant                          has
plead not guilty;         and, while there is no specific               reference
to misdemeanor cases In Article               37.07,    there is likewise         no
specific     exclusion      of misdemeanors.          The Article     is, further-
more, contained        in Chapter Thirty-Seven           of the Code, entitled
"The Verdict,"        which chapter purports           to cover jury verdicts
in county as well as district             courts     as evidenced       by Article
37.03    pertaining      to juries    in county courts.           The first      Arti-
cles of the Chapter,          Articles37.01        through 37.06      define     "ver-
dict"    and set out requirements           for the return of a valid ver-
dict.     Article     37,.07, requiring       a general     verdict     on guilt

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Honorable     Doug Crouch,        page    4 (C-587)



and innocence    and providing            procedures    for the setting       of pun-
ishment,  logically     follows          the preceding     provisions     in the
chapter.    Accordingly,      the        position    of Article    37.07    In the
Code and the Chapter,        "The        Verdict,"    suggests    that the drafters
intended  that this Article              apply to misdemeanors        tried   by a
jury In county courts.

          Moreover,    In finally     deciding    the applicability   of
Article   37.07  to cases where a "not guilty"          plea is presented
to a county court      jury,   reference     should be made to Article
36.01   which outlines     rules for the order of proceeding        in a
jury trial.     This Article      provides    in part:

            Article       36.01   Order    of   proceeding   in   trial

                'A jury being impaneled in any criminal
            action,   the cause shall proceed in the fol-
            lowing order:

                "1.    The Indictment      or information      shall
            be read to the jury by the attorney             prosecut-
            ing . When prior       convictions      are alleged    for
            purposes      of enhancement only and are not ju-
            risdictional,      that portion      of the indictment
            or Information      reciting     such convictions      shall
            not be read until        the hearing      on punishment is
            held as provided       in Article      37.07.

                  .   .   .   .

                “8.   In the event of a finding     of guilty,
            the trial    shall then proceed  as set forth &
            Article   37.07.”     (Emphasis supplied.)

           It is evident     that Article     36.01   applies   to mlsdemean-
or8 tried    to a jury on an information,           as well as to felonies,
and the reference      to and the direction         to proceed under the
provisions    of Article     37.07   makes it clear     that this latter
Article    was also Intended       to apply to such misdemeanor cases
in the county courts        (and also misdemeanor cases over which
the district     court has jurisdiction).           That this conclusion,,
must be reached becomes even more apparent,               when a search of
the new Code of Criminal          Procedure   fails   to disclose   any other
provision    that would provide        for the entry of a jury verdict
and the assessment       of punishment in a misdemeanor case where
a "not guilty"     plea is entered by a defendant.

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Honorable     Doug Crouch,       page   5 (C-587)



           We are aware of the semantical               dlfflcullties        in con-
struing     Article    37.07    generally     and particularly         with regard
to misdemeanors        even though Article         36.01     directs     that jury
trial   misdemeanor cases proceed             under Article        37.07   If there
is a guilty       verdict.      Section    2 of the Article          is entitled
"Alternative       Procedure,"      and Subsection        (a) of this Section
refers    to felony      cases less than capital           and to capital         cases
where the death penalty           has been waived.           There is then no
reference     to misdemeanors         In the following        subsections       of Sec-
tion 2 which provide          for the assessment         of punishment         (and in-
deed no further        reference     to felonies      of any degree).           If these
following     subsections       are read as merely modifying              and expand-
ing on Subsection          (a) (that Is, as making additional                provisions
that relate       to non-capital       felony   cases),      there is then nothing
contained     In Article      37.07    that will     permit or provide          for the
assessment      of punishment In a misdemeanor case where a jury
returns    a guilty      verdict;    and, it has already           been noted,       that
there is no other Code provision               relating      to the return of a
verdict    and the assessing          of punishment In jury-trial             mlsde-
meanor cases.

            The Legislature        in drafting       the new Code of Criminal
Procedure,      could not have intended            to omit proceduresfor          the
assessment      of punishment In a misdemeanor case where a "not.'.
guilty"     plea is entered        and a county court jury returns              a
verdict     of guilty.       The Code must be construed            so as to give
effect    to the obvious        legislative      intent   that there be a means
and method by which a jury verdict                 can be returned       in a misde-
meanor case tried          by a county court jury and punishment as-
sessed if the verdict           be "guilty."        Baldridge    v. it;aeie;;l
S.W.2d 309 (Tex.Crlm~l959).              To give effect      to thi        f
legislative       intent    requires     that Article     37.07   be construed
so as to provide         for the assessment          of punishment In misde-
meanor cases,        a construction       that will give a practical            and
reasonable      meaning to the provisions             of Article    37.07    rather
than an absurd interpretation               which would result       from a too
literal     construction.         Newson v. State,       372 S,W.2d 681 (Tex.
Crim. 1963).
        Moreover,   the Legislature             has stipulated    that       the
new Code provisions    be liberally            construed   In Article        1.26
which provides   as follows:

            Article    1.26    Construction         of   this   Code

                 "The provisfona    of this Code shall  be
            liberally    construed,   so as to attain  the

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Honorable     Doug Crouch,       Page 6 (C-587)



            objects    intended    by the Legislature:           the pre-
            vention,     suppression   and punishment           of crime."

         Applying Article    1.26          and the foregoing   rules of    stat-
utory construction    to Article           37.07 in order to find therein
the appropriate    and necessary           meaning as intended    and contem-
plated by the Legislature,       we        arrive at the following    interpre-
tation of the Article.

            We read    Section  1 as applying    to all verdicts   in jury
cases,    felonies     and misdemeanors   alike,   tried in either   dis-
trict    or county     courts.

            We interpret      subsection     (a) of Section      2 as being ap-
plicable     only to jury cases involving            non-capital    felonies
and capital      felonies    where the death penalty          is waived;     how-
ever,    it is observed       that some of the language in this sub-
section     (a) might be referred         to as evidence      of legislative
intent     so as to properly       construe     other sections     of the Code;
for example,       in deciding     the question      of how a district       or
county judge is to formulate             his charge to the jury under the
requirements       of Article     36.14 (requiring       a charge by the court
in every felony        case and every misdemeanor case tried              in a
court of record)        on the issue of guiltandinnocence.

           We then read subsection             (b) of Section        2 as applying
to the all criminal          jury cases in district            and county courts,
including~.misdemeanor          cases in the county and district                 courts,
except capital        felony    cases in which the jury must always as-
sess punishment by virtue             of,the     requirements       of Article       1.13.
(Again,    however,      note   should     be  made    that  any    appropriate
language    In this subsection           and the following          subsections       may
be indicative        of legislative        intent    as to pro~cedural rules
governing     the assessment         of punishment in capital             felonies.)
In reaching       the conclusion        that subsection        (b) applies       to all
non-capital       felonies     and to misdemeanors          tried     in courts      of
record,    observation       is made that the final            portion      of Section
1 requires      that the jury "must find that the defendant                      is
either    guilty     or not guilty";         it is then noted that subsection
 o&       Sectio;      2, which begins,         "If a~finding       of guilty      is re-
               . .     and  then   sets    out   provisions      for    two  methods     of
assessing     punishment,       logically      follows     the provisions        ex-
pressed    in Section       1 and logically         applies    to all district          and
county court jury cases (excepting                  capital    felonies)      as does
Section    1.     Subsection      (a) of Sectfon         2 contains      what might
be termed parenthetical            provisions       inserted     between Section         1

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Honorable    Doug Crouch,    page   7 (C-587)



and subsection       (b) of Section     2 referring,     as lt does,    to pro-
cedures    In non-capital      felonies   with regard to the court's        ln-
structions     before    the jury verdict.       Furthermore,.   since sub-
section    (b) of Section      2 contains    two separate     and distinct
methods of assessing         punfshment,    we interpret    the words, "Al-
ternate    Procedure,"      Immediately   following    the numeral '2"
(and referring      to Section     2), as having reference       to subsec-
tion (b) wherein the alternate           procedures    for setting    punish-
ment are set out and described.

        We also read subsections   (c),  (d),    (e) and (f) of Sec-
tion 2 as relating    to all jury trials    Involving    all non-
capital   felonies  and all misdemeanors    tried    in a court of
record.

        Extracting     the answer to the question      you have asked
from the above discussion,          we are of the opinion    that Artl-
cle 37.07 is applicable         to misdemeanor cases tried      in the
county courts      (and also to any misdemeanors       that must be
tried   in the district      courts)   where a not guilty    plea is
entered   and the case is tried        by a jury.   The applicability
extends to and includes         the right   of the defendant    to choose
the alternative      procedures     for the assessment   of punishment
and the evidentiary       provisions    governing  the determination
as to punishment to be set.

        It should be noted that this opinion          Is directed  only
to misdemeanor cases tried        before    a jury in a court of rec-
ord where the defendant       pleads    "not guilty."     Where a guilty
plea is entered     in a misdemeanor case,        the subsequent  pro-
cedures    in such cases are controlled        by Article   27.14 of the
Code (although     again Article     37.07 may be of significance       in
ascertaining    the intent    of the Le islature      as to the meaning
of the provisions      of Article    27.1 8 ).

        It should also be observed     that misdemeanors     coming
within the jurisdiction     of justice   and corporation     courts
are not within the purview of Article        37.07.    The manner of
obtaining    a verdict  or assessing   punishment In such cases
is controlled    by Chapter Forty-Five     and Article   27.14 of the
Code.

                                SUMMARY

          The terms and provisions  of Article  37.07
       of the new Code of Criminal Procedure   relating
       to the return of a verdict  and the assessment

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Honorable    Doug Crouch,    page 8 (C-587)



         of punishment apply to misdemeanor cases tried
         by a jury in the county courts  of this State.
                                  Very truly   yours,

                                  WAGGONER CARR
                                  Attorney General      of   Texas



                                  B



LFZ/br

APPROVED:

OPINION COMMITTEE

W. V. Geppert,    Chairman
Al10 l3. Crow,   Jr.
Tom Routt
Roy Johnson

APPROVEDFOR THE ATTORNEYGENERAL
By T. B. Wright




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