: J




                  THE        AITOFUWEY     GENERAL
                                 OILFTrExAs


                                    J&e Il. 1973


      The Honorable Wiley L. Cheatham             O~~B~OB   No. H- 48
      District Attorney
      24th Judicial Dietrict                      Re:       Whether a perron who
      Cuero, Texam 77954                                    rsceivee a felony probated
                                                            rentence under Article
                                                            725b, Section 23(a), V. T. P. C.,
                                                            may under certain circum-
                                                            atanccr receive a recond
      Deer Mr.   Cheatham:                                  felony probated eentence.

           You have requcrtad the opinion of thir office on the following quertions:

                         “(1) If e perron receivea a felony probeted sentence
                  for a violation of the narcotic law under Penal Code, Arti-
                  cle 725b, Section 23(e). may a judge grant him another
                  probeted eentence for e later felony violation of Article
                  725b?

                         “(2)” Mey l defendant who her received e felony
                  probated lentence under Penal Code, Article 125b end
                  whose probetionery rentence haa run out by the kpre
                  of time. then receive a second felony probationary
                  sentence for either unlawful poeeeerion of a nercotic
                  drug (a felony) or rale of a narcotic drug (a felony)?

                         "(3) May a defendantwho bar received a felony
                  probationary sentence and had him probation terminated
                  by the court under C. C. P., Article 42.14, Section 7,
                  receive a necoad felony probated lentenca for a felony
                  conviction or either poereaeion or rat of narcotic drugr
                  under .Penal Coda 725b? ‘I




                                         p. 198
The Honorable      Wiley    L.   Cheatham,      page 2 (H-48)




      Article     725b,    Section   23(a),   V. T. P. C.,   provides:


                       “Except ae provided in Subeectionn (b) and (c)
                of this section,  any person who violates lny provision
                of thin Act is guilty of a felony and upon e first con-
                viction ie punishable   by imprironment    in the peniten-
                ‘.
                tlary for not leei’ than two yeara nor more’ than life;
                end upon a second or rubrequent      conviction, he ie
                punishable   by imprisonment    in the penitentiary  for
                not leer than 10 years nor more than life.      Suspended
                rentence or prohation under the Adult Probation        and
                Parole   Law in not availeble   to a peraon upon a ,eecond
                or clubsequent conviction. ”

       This statute ueee the same language regarding          both enhanced een-
tences and the availability   of probation.    ‘I. . . upon a second or subsequent
conviction. ” Both probation and the possibility        of an enhanced sentence
are dependent upon whether there was e prior conviction for a violation
of this act.  It is our opinion that the Legislature,      by thie uoe of the same
language in these two auccesrive      sentencee,    intended that the came mean-
ing for “conviction”   apply in both eituationr.

       Because this article provides     for enhanced punishment for second
and subsequent violations   of the Narcotic      Drug Act, it has been held that
a prior violation may not be used to enhance punishment under the provisiona
of Article 62 and 63, V. T. P. C. Heredia v. State, 468 S. W. td 833 (Tex.
Crim.    1971). However,   authoritative    interpretationr  of Article 63, V. T. P. C.,
may be helpful in understanding     it.

      Article     63, V. T. P. C.,      provide*:

                      “Whoever       shall    have been three timer      convicted
                of a felony leer than capital ehall on ruch third           convictioh
                be imprironed   for life in the penitentiary. ”

       Like Article 725b.        it predicater  enhanced punirhment upon a prior
conviction or convictions.          In White v. State, 353 S. W. 2d 229 (Tex. Crim.




                                              p. 199
The Honorable         Wiley     L.   Cheatham,    page 3 (H-48)




1962), the court considered   the iarue of what conatitutea                 a prior conviction
under Article  63, V. T. P. C., and came to the following                   conclurion:

                    “The pronouncement     of sentence upon the
            defendant in all felony cases lear than capital in
            errsential to a final judgement of conviction.    In the
            absence of any evidence showing a final conviction
            of the appellant in the two prior convictions alleged
            for enhancement,     the evidence im insufficient  to
            support the conviction.

             . . .

                   “The mandate off Article 42.02, V. T. C. C. P.]
            requires  that the sentence order the judgment of the
            court be carried   into execution.  In a felony case,
            the skntence is the final judgment of conviction,    with-
            out which there is no final conviction. ”

It is therefore   clear that, for purpoee.9 of enhancing punishment for prior
convictions,    the prior conviction must be one that ia final, meaning aantence
has been pronounced      ordering  the judgment be carried  into execution.

      Section     3 of Article        42.12,   V. T. C. C. P.,   provideo    in part:

             9,
                  .   (Clourts . . . shall have the powers, after
                      .   .


             conviction or a plea of guilty . , . , to luepend the
             imporition   of the sentence and place the defendant
             on probation    . . , .”

       Under the probation   law, sentence io not pronounced   but in deferred.
See Tee1 v. State, 432 S. W. 2d 911 (Tex. Crim. App. 1968).     Therefore    a
sentence which has been probated is not final and ir not a conviction for
purposes   of enhancement   under Article 725(b), V. T. P. C., nor for purpoaer
of preventing  probation  thereunder.

       We therefore            answer your first question that a person who is under
probated sentence             for a violation of Article 725b. Section 23 (a), V. T. P. C.,




                                                 p. 200
                                                                                           . .



The Honorable Wiley L. Cheatham,             page 4 (H-48)




may be granted another probated leotence for a later felony violation of
that article.

       Your recond and third queetionr concern the eituation where a                   .
probated defendant hae completed hie full period of probatidn by the lap?=        .’
of time or hae had hir probation terminated by the court under Article
42.12, Section 7,’ V. T. C.C. P. , which provider in part:

                   “At any time,         the defendant haa l
                                     after                       atimfactorily
            completed one-third of the original probationary          period
            or two year@ of probation,     whichever ia the leraer,       the
            period of probation may be reduced or terminated            by the
            court. Upon the satisfactory      fulfillment   of the conditions
            of probation,   and the expirationof     the period of probation,
            the court, by order duly entered,        shall amend or modify
            the original  sentence imposed,      if necerrary,    to conform
            to the probation period, and shall dircharge       the defendant, ”

Where the defendant hao satisfactorily     completed hi8 period of probation,
the court ie required to discharge    him, and in fact never pronouncee   sentence
ordering   execution of the judgment of the court, aa would constitute a final
judgment of conviction sufficient to clupport enhancement.     See White v.
State, supra.    It ia therefore our opinion that a defendant who haa success-
fully completed by lapse of time a prior probated sentence for a violation
of Article  725b, Section 23(a), V. T. P. C., ia not thereby prohibited  from
 receiving  a second probated sentence for a felony conviction thereunder.

       Similarly,   to answer your third question,    where the prior probationary
sentence bar been terminated      by court order under Section 7, Article     42.12,
V.T.C.C.P.,       the defendant ia eligible to receive a recond felony probated
rentence for a felony conviction for either poreerrion      or rale of narcotics
drug* under Penal Code, Article       725b.

                                    SUMMARY

                   Under Article     42.12, Vernon’6 Texan Code of
             Criminal  Procedure,     a probated  sentence ir not a




                                        p. 201
                                     .




The Honorable Wiley L. Cheatham,     page 5 (~-48)




            final conviction which would eerve to enhance the
            punishment for a second conviction.     Therefore,
            a person who received a probated renteocc under
            Article 725(b), Section 23(c), V. T. P. C., may
            receive a second proheted sentence before the
            expiration of the period of probate for the prior
            sentence, before he has concluded hir period of
            probation by lapse of time or hae had the period
            altered by order of the court.

                                  Very truly your*.




                                            General of Teur

APP&qVED:




lb--d-w
DAVID M. KENDALL,      Chairman
Opinion Committee
