    The Attorney              General          of Texas
                      March   17,   1981




Honorable Oscar Ii.: Mauxy, Chairman       Opinion No.   MW-306
Senate Committee on Jurisprudence
State Capitol                              Re: Constitutionality     of section
Austin, Texas 78’711                       3e(d of article 42.12 of the Code of
                                         ’ Criminal Procedure

Dear Senator Mauxy:

      You have requested our opinion regarding the constitutionality of a
proposal to amend section 3e(a) of article 42.12, Texas Code of Criminal
Procedure, commonly known as the “shock probation” statute. That statute
now reads:

           For the purposes of this section, the jurisdiction of
           the courts in this state in which a sentence requiring
           confinement in the Texas Department of Corrections
           is imposed for conviction of a felony shall continue
           for 120 days from the date the execution of the
           sentence actually begins. After the expiration of 60
           days but prior to .the expiration of 126 days from the
           date the execution of, the sentence actually begins,
           the judge of the court that imposed such sentence
           may, on his own motion or on written motion of the
           defendant, suspend firther execution of the sentence
           imposed and place the defendant on probation under
           the terms and conditions of this article, if such
           sentence is otherwise eligible for probation under this
           article and prior to the execution of such sentence,
           the defendant had never. been incarcerated           in a
           penitentiary  servitq a sentence for a felony and in
           the opinion of the judge then defendant would not
           benefit from further incarceration    in a penitentiary.
           Probation may bs granted under this section only if
           the offense for which the defendant was sentenced
           was an offense other than criminal homicide, rape, or
           robbery.

      You first ask whether the grant of shock probation may be conditloned
upon a defendant’s pleading guilty or nolo contendere and waiving his right
of appeaL




                                    P.   975
 Honorsble Oscar H. Mauzy - Page Two           ‘(MW-306)




       Under the proposal, a defendant, in order to be eligible for shock probation,
 would be obliged to waive his federal constitutional right to trial by jury. In United
 States v. Jackson, 390 U.S. 570 (19681, the United States Supreme Court considered
 the constitutionality  of a provision of the Federal Kidnaping Act, 18 U.S.C. section
 1201(a), which made interstate     kidnaping under certain circumstances    an offense
 punishable by death “if the verdict of the jury shall so recommend.” The statute did
 not provide a “procedure for imposing the death penalty upon a defendant who waives
 the right to jury trial or upon one who pleads guilty.” 390 U.S. at 57L In striking
 down the death penalty provision, the Supreme Court declared:

              Our problem is to decide whether the Constitution permits the
              establishment of such a death penalty, applicable only to those
              defendants who assert the right to contest their guilt before a
              jury. The inevitable effect of any such provision is, of course,
              to discourage assertion of the Fifth Amendment right not to
              plead guilty and to deter exercise of the Sixth Amendment right
              to demand a jury triaL If the provision had no other purpose or
              effect than to chill the assertion of constitutional   rights by
              penalizing those who choose to exercise them, then it would be
              patently unconstitutionaL

390 U.S. at 581. Even if a valid statutory    purpose is presumed, however, it:

              cannot be pursued by means that needlessly chill the exercise of
              basic constitutional rights.

).& at 582.

      In the years since its decision ln Jackson,      the Court has repeatedly cautioned
against a broad reading of that opinion. =fIn            v. Stynchcombe, 412 U.S. 17 (1973),
the Court warned:

                  Jackson did not hold. . . that’ the Constitution forbids every
              government-imposed    choice ln the criminal process that has the
              effect of discouraging the exercise of constitutional rights.

412 U.S. at 30. In Corbitt v. New Jersey, 439 U.S. 212 (1978Lthe Court considered a
New Jersey statute to which the Jackson rationale would arguably have applied. See
United States v: Chavez, 627 F. 2d 953, 956 (9th Cir. 1980). Under the statute, a
defendant convicted of fist-degree    murder by a jury was sentenced to mandatory life
imprisonment.    If the defendant pled non vult, a plea similar to nolo contendere, the
judge could sentence him to either life or to the punishment imposed for second degree
murder, a maximum 30year term. The majority opinion distinguished the statute from
the statute in Jackson on two grounds: the unique nature of the death penalty; and the
fact that the mm          term could still be imposed in New Jersey by a judge accepting
a non vult plea, whereas the death penalty could not have been imposed upon a
defendant pleading guilty under the Federal Kidnaping Act. 439 U.S. at 217. In
addition, as the concurring opinion pointed out, a defendant who went to trial on a
general murder indictment in New Jersey might be found guilty only of second degree
murder, with a maximum punishment of 30 years’ imprisonment. 439 U.S. at 226-27.



                                         P.   976
.Honorable Oscar H. Mauxy - Psge Three          ‘(MW-306)




       This last distinction between Corbitt and Jackson is ako one difference between
the Corbitt statute and the proposal you have submitted to us: in the present instance,
a de-t          who opts for trial is absolutely precluded from consideration for shock
probation.    But although Corbitt in itself may not be dispositive of your inquiry, the
general tenor of relevant Supreme Court opinions since Jackson indicates that the
proposal would not be held violative of the Federal Constitution.

       InUnited States v. Chavez, 627 F. 2d 953 (9th Cir. 19801, the Court of Appeals
for the Ninth Circuit recently considered a federal statute which provided for the
mandatory imposition of the costs of prosecution upon a defendant convicted of
willfully failing to file an income tax return. Like that in Jackson, the Chavez statute
reserved its maximum penalty for those who insisted upon their right-l                The
court, noting that the Supreme Court “has not enthusiastically       embraced the ‘chill’
rationale articulated in Jackson,” 627 F. 2d at 956, declared that it was unable to:

            say with any confidence that the costs of prosecution provision
            of section 7203 does in fact penalize a defendant’s exercise of
            his constitutional     rights. . . . The presence of the mandatory
            costs of prosecution provision does not, with any degree of
            certainty,    substantially    increase the threatened    punishment.
            Any encouragement of the waiver of constitutional          rights that
            this provision may’ Induce is substantially different from the
            pressures that undeniably existed ln Jackson, and cannot be said
            to be an impermissible burden upon the exercise of constitu-
            tional rights     In light. of the fact that the provision does serve
            legitimate government’ purposes, we cannot say that it need-
            lessly encourages the waiver of constitutional rights

Id. ,at 957. The court, in d&l@ng its fealty to the trend of the Supreme Court’s post-
Jiickson, decisions, has demonstrated that the Jackson rationale is, ln all likelihood,
presently applicable only to statutes in which the death penalty is resewed for those
defendants who exercise a constitutional right.

       Viewed historically, United States v. Jackson may be seen as an aberration in a
long line of decisions which have accorded constitutional sanction to the process of
plea bargaining. See,=,         Black1                 431 U.S. 63, 71 (1977); SantobeIlo v.
               404 U.S. 257, 2                                         397 U.S. 742, 751-52
Fe        ln Bordenkicher    v.                                       me Court approved a
prosecutor’s threat that a defendant must plead guilty with a recommended five-year
sentence, or be relndicted as an habitual criminal         The Court concluded that the
prosecutor had done nothing more .thsn “openly presented the defendant with the
unpleasant alternatives     of forgoing trial or facing charges on which he was plainly
subject to prosecution.”      434 U.S. at 365. Although such a choice might’dlscourage
assertion of the right to trial, its effect was “an inevitable attribute of any legitimate
system which tolerates and encourages the negotiation of pleas.” Id. at 364. The
majority In Corbitt v. New Jersey, supra, found that the New Jersey sentencing
scheme simply imposed by statute the same difficult choice as had been imposed by
the prosecutor In Bordenkircher.       As a result, the majority found “no difference of
constitutionalsignificance”     between the two cases. 439 U.S. at 221.




                                  P.   977
    .
        Honorable Oscar H. Mauzy - Psge Four         ,(MW-306)
.



                Although the dissenting opinion in Corbitt argues that plea bargaining negotia-
        tions between prosecutor and defendant do not burden constitutional rights to the same
        degree as a statutory scheme which discourages assertion of a defendant’s right to trial
        by imposing a different standard of punishment dependent solely upon the plea entered,
        it is clear that the potential effect upon a defendant is the same. In either case, the
        possibility of leniency is available only to a defendant who foregoes the exercise of his
        right to trial by jury and its accompanying constitutional rights        As has been noted,
        since the Supreme Court found no constitutionally           significant difference between
        Bordenkicher     and Corbitt, “the Corbitt court has paved the way for a statutory
        imposition of the prosecutor’s threat in Bordenkircher.” Note, 93 Harv. L. Rev. 73, 81
        (1979). In United States v. Chavez, *,          the court of appeals recognized that, when
        read together, Bordenkircher and              compel the conclusion that virtually any such
        legislative carrot-and-stick   approach that avoids imposition of the death penalty will
        withstand federal constitutional      attack.     In our opinion, the proposal you have
        submitted does nothing more than offer substantial benefits~in return for a plea of
        guilty. Under such circumstancesf it does not contravene the fifth, sixth or fourteenth
        amendments to the United States Constitution.

              Neither have we discovered any decision which indicates that the proposal would
        run afoul of sections 3, 3a, 13 or 19 of article I of the Texas Constitution.   In the
        absence of any contrary authority, Texas courts would,. in our opinion, follow the
        bellwether views of the United States Supreme Court and~hold that the proposal &es
        not violate any of those provisions of the Texas Constitution.

               Your second question is whether, if a judge is required to hold a hearing before
        granting a motion for shock probation, he may deny such a motion without a hearing.
        You also ask whether, if he may deny the motion without a hearing, he may do so if the
        defendant has plea bargained for shock probation.

               It is well established that ,probation is granted to a defendant as a privilege and
        not as a right. Berman v. United States, 302 U.S. 211(1937); Bryson v. United States,
        265 F. 2d 9, 14 (9th Cir. 19591, cert. denied, 360 U.S. 919 (1959). A sentencing judge’s
        discretion in granting or denying probation is subject, for constitutional purposes, only
        to the requirement that it be “reasonably exercised.” United States v. Hayward, 471 F.
        2d 388, 391 (7th Cir. 1972). See Whitfield v. United States, 401 F. 2d 480, 482 (9th CIr.
        19681, cert. denied, 393 U.S. 1026(196! )I        ? court of criminal appeak.has stated:

                   [WIhen the trial is before the ‘court, and a motion for probation
                   is filed, the trial judge has absolute and unreviewable discretion
                   either to refuse or to grant probation.

        Trevino v..State, 519 S.W. 2d 864, 867 (Tex. CrIm. App. 1975). See ako Saldana v.
        m,       493 S.W. 2d 778. (Tex. CrIm. App. 19731. Although the process of probation
        revocation must now be accorded the rudiments of due process, Gagnon v. Scarpelli, 411
        U.S. 778,782 (19731, no such constitutional protection attaches to the original grant or
        denial of probation. See A. Campbell, Law of Sentencing, S19, at 80 (1976 ed.). We are
        aware of no decisiorwhich       has held that a hearing is constitutionally     required
        whenever a motion for probation is filed. Accordingly, we believe that a judge may
        constitutionally deny a motion for shock probation .with or without a hearing.




                                              P.   978
.


    Honorable Oscar H. Mauxy - Page Five            (MW-3061




           As to whether the result is different     when a defendant has entered into a plea
    bargain for shock probation, we understand your inquiry to refer to a plea bargain
    involving only the defendant and the prosecutor.          It is clear that a plea bargain in
    which the trial judge participates   is binding on the state. Ex parte Jasper, 538 S.W. 2d
    782 (Tex. Grim. App. 19761 But as the court of criminal appeak points out in Trevino
    v. State, 519 S.W. 2d 864 (Tex. Crim. App. 19751, the federal constitutional requirement
    unposed by Santobello v. New York, 404 U.S. 257 (19711, doas not mean that a
    prosecutor% recommendation         of probation pursuant to an agreement           with the
    defendant should be binding on the trial court. 519 S.W. 2d at 867. So long as the trial
    judge is not a party to the plea bargain, he is free to deny a motion for shock probation
    without holding a hearing.

                                         SUMMARY

                    A proposal to condition a grant of shock probation upon a
               defendant’s pleading guilty or nolo contendere and waiving his
               right of appeal would not contravene the sixth and fourteenth
               amendments to the United States Constitution.      A trial judge
               may constitutionally  deny a motion for shock probation without
               holding a hearing, so 10% as he is not a party to a plea bargain
               promising shock’ probation to the defendant In return for a
               guilty plea.

                                                    Very truly yours,     /7


                                                    MARK      WHITE
                                                    Attorney General of Texas

    JOHN W. FAINTER, JR.
    First Assistant Attorney General

    RICHARD E. GRAY III
    Executive Assistant Attorney   General

    Prepared by Ride Gilpln
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Susan L. Garrison, Chairman
    Jon Bible
    Gerald C. CfIrNth
    Rick Gilpin




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