Hon. Edgar A. Wallace            Opinion IJo.M-639
County Attorney
of Kerr County, Texas            RE:   !,2ay
                                           a defendant who
Chas. Schreiner Dank Dldg.             pleads guilty to a mis-
Xerrville, Texas 70028                 demeanor charge, and who
                                       received a probated sen-
                                       tence within the immedi-
                                       ately preceding five years,
                                       receive a probated sen-
                               .."     tence for the pre~sent
Dear Hr. Wallace:                      offense?

     This is in response to your inquiry requesting the
opinion of this office as to whether a County Judge may
grant misdemeanor probation to a defendant who has re-
ceived probation durinq the five year period immediately
preceding his current convictian.
     Apparently the confusion arises from the change in,
Article 42.13, Section.3, Texas Code of Criminal Procedure
as was amended in 1967.
     Prior to the 1967 amendment, the Code of Criminal
Procedure stated, inter alia, that eligibility formis-
demeanor probationBhoul=     based upon [Section 3(a) (2)I:
       "(2) he has .neverbefore been con-
       victed in th~isor another ~jurisdiction
       of a felony or of a misdemeanor for
       which the maximum permissible punish-
       ment is be confinement in jail or ex-
       ceeds a $200 fine"
and Section 3(a) (3):
       "(3) he has not been granted pro-
       bation nor been under probation under
       this Act or any other Act in the pre-
       ceding five years;" (Emphasis added.)




                             -3056-
Hon. Edgar   A.   Wallace, page 2, (U-639 )


     The 1967 amendment eliminated Section 3(a) (2) above
but reincorporated Section 3(a) (3) above as Section 3(a)
(2) of the amended Act.
     Section 3(b) of the amended Act contains the new
provision:
        " * * * The Court may grant the
        defendant probation regardless of
        the recommendation of the jury or
        the prior conviction of th defen-
        dant, * a *I (Emphasis addeed.
Dut, broththe original and the amended Act require under
Section 3(c) that the defendant's application must show
whether he has any';xior convictions and musf affirmatively
show that he has n~0tboprabation
                       een                  in the preceding
five years.
     From the standpoint of statutory construction we must
assume that the Legislature had a purpose in leaving the
required disclosure of prior convictions in Section 3(c),
even though such prior convictions in and of themselves
are no longer a bar to probation. The evident purpose
of such information is to enable the Judge to effectively
exercise his discretion in granting or withholding probation
with such pertinent facts before him.
     The fact that the Legislature upecifically retained
as a condition of granting probation that the defendant
has not been granted probation nor heen under probation
durina the nrecedina five vears clearlv shows that it was
the legislakive int&t thag a person nbt be eligible for
misdemeanor probation for five years after he has completed
a prior probationary period.
     It is therefore the opinion:of this office that the
County Judge is not authorized to grant misdemeanor probation
to a person who has received any type of probation until
five years have expired after the completion of such prior
probationary term.




                              -3057-
Hon. Edgar A. rlallace,page 3, (M-639 )




       The County Judge is not authorized
    to grant misdemeanor probation to a
    person who has received any type of
    probation until five years have expired
    after the completion of such prior pro-
    bationary term.
                                       ruly yours,




Prepared by Howard :~I.
                      Fender
Assistant Attorney General
APPROVED8
07?1171017
        COlUlITTCE
Kerns Taylor, Chairman
!!.E. Allen, Co-Chairman
Charles Parrett
Jo Betsy Lewallen
Lonnie Zwiener
Sam Jones
NEADE F. GRIFFIN
Staff Legal Assistant
ALFRED V7ALI:ER
Executive Assistant
IlOLAVIIIITE
First Assistant   Attorney   General




                              -3058-
