Honorable Rayford A. Ratliff            Opinion No. JM-798
Moore County Attorney
P. 0. Box 634                           Re:   Whether a defendant is
Dumas, Texas 79029                      eligible for misdemeanor pro-
                                        bation 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          probation that has not been revoked and has not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 con-
          victed, 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




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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




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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 com-
          plains 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




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