            TBIEATTQBNEY               GENERAL.
                       CD      EXLAS
                    AUSTIN, TEXAS wsz#


                     March 30, 1966

Honorable James A. Williams   Opinion No. c-643
County Attorney
Blanc0 County                 Re:   Whether an officer, by vir-
Johnson City, Texas                 tue of a valid search war-
                                    rant issued to search for
                                    a stolen TV set, and in ad-
                                    dition to finding the des-
                                    cribed TV set, also finds a
                                    typewriter which had been
                                    reported stolen at another
                                    time, may legally take pos-
                                    session of the typewriter
                                    and related questions; and
                                    construction of Article
                                    42.13, C.C.P., relative to
Dear Sir:                           the stated facts.
        In an opinion request of this office you submit the
following fact situation:
          ,IlAl (A law officer) armed with a prop-
       erly drawn search warrant describing a 19
       inch portable General Electric TV, Model
       0000. Searches premises, finds and takes
       possession of TV. He also finds a type-
       writer which had been reported stolen at
       another time."
        The above fact situation raises, in substance, the
following questions: 1. May the law officer legally take
possession of the typewriter? 2. Will the stolen typewriter
provide the basis for a charge of theft or a charge of re-
ceiving and concealing stolen property? 3. May the type-
writer be introduced in evidence?
        In answer to Question No. 1, it is the opinion of this
office that the typewriter may be seized, If it is discovered
by the law officer during a lawful execution of a valid search
warrant. A similar question was raised in the case of Daltwas
v. State, 375 S.,W.2d732 (Tex.Crim. 1964). This case involved
                                                                                  .   -
        I
.   ”




            Honorable James A. Williams, page 2 (c-643)


            a search warrant which was issued to search for heroin. Mari-
            huana was discovered, but not heroin. The Court said "Any
            contraband such as marihuana, although not specifically named
            in the warrant, may be legally seized when It is observed dur-
            ing a lawful execution of a valid search warrant issued for
            heroin."
                    In the case of Burks v. State, 260    S.W. 181   (Tex.Crim.
            1924), the court stated:
                       "A.holding that would lead to the inevi-
                    table conclusion that officers who went into
                    the house of one suspected of crime, armed
                    with a valid search warrant accurately des-
                    cribing the things they were privileged to
                    search for, who in the course of their search
                    found property undeniably stolen or weapons
                    admittedly used in the commission of homi-
                    cides or other crimes, could not produce the
                    articles thus found in an attempt to prosecute
                    the possessor of the premises or of the prop-
                    erty, for theft or receiving stolen property,
                    or murder or burglary as the case might be,
                    and thus deprive the government of its right
                    to prosecute offenders in cases of theft,
                    murder, etc., because forsooth the searching
                    officers did not go to the premises armed with
                    a warrant describing the particular property,
                    is a view that we trust will never be .enter-
                    tained by this court. . . .'
                    In answer to Question No. 2, the stolen typewriter
            would provide the basis for a charge of theft or a charge of
            receiving and concealing stolen property, assuming that the
            State could meet its burden of proof.
                    In answer to Question No. 3, It is the opinion of
            this office that the stolen typewriter may be used in evi-
            dence, assuming that the discovery of such typewriter was
            made during the lawful execution of a valid search warrant
            as set out in the answer to Question No. 1.
                    You further request an opinion of this office con-
            cerning the following:
                       I9,Bt Driving at an Illegal speed, fail-
                    ing to heed flashing caution light, collides



                                           -3124-
-   .




        Honorable James A.   Williams, page 3 (C-643)


                with another car and killing an occupant;
                later charged with negligent homicide, 2nd
                degree; comes into Court with an attorney
                and enters a plea of Nolo Contendere. The
                Court accepted the plea and fines him $XXXX
                dollars and costs; no jail sentence. The de-
                fendant properly filed his request for pro-
                bation. The Court examined said request and
                placed him on one year probation. Defendant
                paid his fine and costs and walked out. The
                docket indicates the fine, coats and proba-
                tion. Later, for cause the Court has him
                picked u for violating his probation (Sec-
                tion 6(a ‘i .
                   "Section 3(a) of said Article says, when
                Defendant punished by fine 'or-'confinement
                In county jail, may be granted probation.
                   "Question: Where no jail sentence was
                given or docketed, just what does a court
                revoke?"
                Article 42.13, 1966 Code of Criminal Procedure, pro-
        vides, in part, as follows:
                   "Sec. 3 (a) A defendant who has .been
                                                       .
                found guilty of a misdemeanor wnereln tne
                maximum permissible punishment is by con-
                finement in jail or by a fine in excess of
                $200 may be granted probation if: . . .
                   "Sec. &.(a) When a defendant is granted
                probation under the terms of this Act, the
                finding of guilt does not become final, nor
                may the court render judgment thereon, ex-
                cept as provided in Section 6 of this Arti-
                cle.
                   "(b) The oourt shall record the fact and
                date that probation was granted on the docket
                sheet or in the minutes of the court. The
                court shall also note the period and terms
                of the probation, and the details of the
                judgment. The court's records may not re-
                flect a final conviction, however, unless




                                     -3125-
                                                                 .   a




Honorable James A. Williams, page 4 (c-643)


        probation is later revoked in accordance with
        Section 6 of this Article.
            .   .   .   .

           "Sec. 6. (a) If a probationer violates any
        terms of his probation, the court may cause
        his arrest by warrant as in other cases. The
        probationer upon arrest shall be brought prompt-
        ly before the court causing his arrest and the
        court, upon motion of the state and after a
        hearing without a jury, may continue, modify,
        or revoke the probation as the evidence war-
        rants.
           "(b) On the date the probation is revoked,
        the finding of guilty becomes final and the
        court shall render judgment thereon against
        the defendant. The judgment shall be enforced
        as in other cases and the time served on pro-
        bation may not be credited or otherwise con-
        sidered for any purpose."
        It is the opinion of this office that the defendant,
in the above circumstances has fully discharged the obligation
to the court at the time the fine and costs were paid. How-
ever, the terms of probation continued and the court must
formally revoke the probation of the defendant in order to
enter a final judgment of conviction.
                            SUMMARY
           Where a valid search warrant is issued
        to search for a stolen TV set,a stolen type-
        writer not specifically named in the warrant
        may be legally seized when it is observed
        during the lawful execution of such warrant.
        Assuming that the State can meet its burden
        of proof, the stolen typewriter may be made
        the basis for a charge of theft or receiving
        and concealing stolen property. The type-
        writer, being seized pursuant to a lawfully
        executed search warrant, may be introduced
        in evidence.
           A.defendant who enters a plea of nolo
        contendere, who is found guilty, who is




                               -3126-
.   .




        Honorable James A. Williams, pag e 5 (c-643)


                fined $XXXX and costs, who does not receive
                a jail sentence and who pays his fine and
                court costs is on probation until such time
                as his probation is revoked. It is neces-
                sary for the court to revoke probation be-
                fore a final judgment of guilty can be
                entered.
                                       Yours very truly,
                                       WAGGONER CARR
                                       Attorney General of Texas




                                                  Assistan; Attorney General
        TWM/er/br
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        John Banks
        Howard M. Fender
        Charles B. Swanner
        Douglas H. Chilton
        APPROVED FOR THE ATTORREY GENERAL
        By: T. B. Wright




                                     -312   f’-
