  . . .-    _




                      EA         OIWEY         GENERAL
                               OF   TEXAS




                           February 15, 1967


Honorable R. A. Richardson                  Opinion No. M-27
District Attorney
88th Judlclal District                      Re: Under proper clraumstances,
Kountze, Texas                                  may a defendant who received
                                                a five year suspended sen-
                                                tence before the new Code
                                                of Criminal Procedure came
                                                Into effect, come within
                                                Section 7 of Article 42.12
                                                of the new Code, and have
                                                his suspended sentence re-
                                                duced or terminatedby the
                                                court, after having satls-
                                                factorlly completed the
                                                period set out by such
Dear Mr. Richardson:                            Article?
         You have requested an opinion from thle office on the
following question:
                "Under proper circumstances,may a defend-
           ant, who received a five year suspended sentence
           before the new Code of Criminal Procedurebecame
           effective January 1, 1966, be subject to having
           his suspended sentence reduced or terminated by
           the court after having satisfactorilycompleted
           the term or period provided In Secj?on 7# Article
           42.12s Code of Criminal Procedure.
          The law In effect at the time the suspended sentence
was given, Article 776a, Vernon88 md7   Code of Criminal Procedure,
provided for the d.efendantounder FeerFainconditions,to request
a suspended sentencep and granted the court the right and power
to suspend sentence of the defendant during his good behavior.
                Article 780, Vernon's &la7 Code of Criminal Procedure
provided:

                                - 113-
Hon. R. A. Richardson, page 2 (M-27)


          "In any case of suspended sentence,at
     any time after the expfratlon of the time as-
     sessed as punishment by the jury, the defendant
     may make his written sworn motion for a new trial
     and dismissal of such case* stating therein that
     since such former trial and convictionhe has
     not been convicted of any felony, which motion
     shall be heard by the court during the first
     term time after same 'isfiled. If It appears:
     to the courts upon such hearing, that the de-
     Pendant has not been convicted~of any other
     felony, the court sha,llenter.an order reciting :
     the fact, and shall grant the defendanta'new
     trial and shall then dismiss said cause. After
     the setting aside and dismissal of any judgment
     of conviction as herein provided for, the fact
     of such conviction shall not be shown or Inquired              .
     Into for any purpose except in cases where the
     defendant has been again Indicted for a felony
     and invokes the benefit of thls,law."
          The present Code of Criminal Procedure repealed the
applicationof Article 776a and 780 to judgments entered after
its adoption. Such repeal, however, does not affect the pro-
visions of Article 780 granting defendants a new trial and dls-
missal of the cause In cases where the judgment was entered prior
to its repeal; to hold otherwise would violate the constitutional
provision which prohibits the passage of retroactfve laws which
takes away or Impairs vested rights acquired under exfst%ng laws.
Article I, Section 16, Texas Constitution.
          In the case of Rx Parte'Plttman, 248 S.W.2d 159, (Tex.
Grim, 1952) construingArmcma,        the old suspended sentence
law, and its relation to the Adult Probation Law, the court held
that the two laws cannot be merged but they were two separate and
Independentacts.
          The.LeglslatureIn 1965 fn enactfn ~the neivCode ~of
Criminal Procedure Included therein Article fi
                                             2,12, which Is the
new Adult Probation and Parole Law: Section 35, below quoted,
reveals that It does not apply ~tothe old suspended sentence law.
          'Sec. 35. This Article shall not be deemed'
     to alter OP fnva1 a e an                 er 0
     flxed under statutes in force prior to the ef-
     fective date of this Code or to limit the,jurSs-
     prt                         to modify or terminate
     su:h probationaryperiod. In other respects, per-
     sons placed on probatfon or parole prfor to the
     effective date of this Code shall be amenable to
     the provisions of this Code insofar as it may be
                         - 114,-
Hon. R. A. Richardson, page 3 ,(M-27)




          It Is the opinion of this office that an lndlvldual
who has received a suspended sentence before January 1, 1966,
is subject to having the same terminatedunder Article 780 of
the old Code of Criminal Procedure In effect at the time of
granting said suspended sentence9 and the court has no authority
und.erSection 7 of Article 42.12 fiewT.Code of Criminal Procedure,
to reduce said sentence Imposed uEdeFthe Suspended Sentence Law.
                    SUMMARY
         An Individualwho has received a suspended
    sentence under Article 776a, Vernon's old C,C.P,,
    in force at that time, may not have his sentence
    reduced or terminated under Section 7 of Article
    42,12 &iezT Code of Criminal Procedure,




                                    General of Texas
Prepared by William J, Craig
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W, V. Geppert, Co-Chairman
Robert Owen
John Banks
Lonny Zwlener
Sam Kelley
STAFF LEGAL ASSISTANT
A. J. Carubbl, Jr,
