          THE     ATKBEZNEY         GENERAL
                       OF-XAS




Honorable D. Brooks Cofer, Jr.
District Attorney              Opinion No. M-882
Bras06 County
Box 3520                       Re: Article 42.12, Section 3c,
Bryan, Texas 77801                  Vernon's Code of Criminal
                                    Procedure.
Dear Mr. Cofer:

      Your opinion request poses the following question in
regard to Article 42.12, Vernon's Code of Criminal Proce-
dure.

        "Does the defendant have the burden of
     proof to establish his eligibility for pro-
     bation when he has pled guilty and the jury
     has been waived in the proper manner but he
     has not made a written formal application
     for probation?"

     The applicable portions of Article 42.12 read as follows:

        "Sec. 3. The judges of the courts of the
     State of Texas having original jurisdiction
     of criminal actions, when it shall appear to
     the satisfaction of the court that the ends
     of justice and the best interests of the
     public as well as the defendant will be sub-
     served thereby, shall have the power, after
     conviction or a plea of guilty for any crime
     or offense, where the maximum punishment as-
     sessed against the defendant does not exceed
     ten years imprisonment, to suspend the im-
     position of the sentence and may place the
     defendant on probation or impose a fine ap-
     plicable to the offense committed and also
     place the defendant on probation as herein-
     after provided.  Any such person placed on




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Honorable D. Brooks Cofer, Jr., Page 2     (M-882)



     probation, whether in a trial by jury or
     before the court, shall be under the super-
     vision of such court.

        "Sec. 3a. Where there is a conviction in
     any court of this State and the punishment
     assessed by the jury shall not exceed ten
     years, the jury may recommend probation upon
     written sworn motion made therefor by the
     defendant, filed before the trial begins.
     When the trial is to a jury, and the defend-
     ant has no counsel, the court shall inform
     the defendant of his right to make such
     motion, and the court shall appoint counsel
     to prepare and present same, if desired by
     the defendant.   In no case shall probation
     be recommended by the jury except when the
     sworn motion and proof shall show, and the
     jury shall find in their verdict that the
     defendant has never before been convicted
     of a felony in this or any other State.
     This law is not to be construed as prevent-
     ing the jury from passing on the guilt of
     the de~fendant, but he may enter a plea of
     not guilty. In all eligible cases, pro-
     bation shall be granted by the court if the
     jury recommends it in their verdict.

        "If probation is granted by the jury the
     court may impose only those conditions which
     are set forth in Section 6 hereof.

        "Sec. 3b. . . .

        "Sec.   3c. Nothing herein shall limit the
     power of   the court to grant a probation of
     sentence   regardless of the recommendation of
     the jury   or prior conviction of the defendant."

     Where trial is before a jury, the defendant clearly
must make a sworn application for probation and must sus-
tain the burden of showing that he has never been convicted
of a felony before the jury can recommend a probated sen-
tence under Section 3a. Herring v. State, 440 S.W.2d 649
(Tex.Crim., 1969).



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Honorable D. Brooks Cofer, Jr., Page 3      (M-882)



       No requirement for a sworn motion and proof of eligibility
 for probation is found in Section 3, which authorizes the
 trial judge to grant probation.    Section 3c further empowers
 the trial  judge to grant probation regardless of the recom-
mendation of the jury or the existence of a prior conviction
 of the defendant.    The only requirements placed on the judge's
 decision are that the sentence must not exceed ten years and
 that the judge must be satisfied that the ends of justice and
 the best interests of the public and the defendant will be
,served by a probated sentence. The trial court has absolute
 discretion to decide whether to grant probation, and no author-
 ity exists by which a defendant can require the granting of
 probation.   Redd v. State, 438 S.W.2d 565 (Tex.Crim., 1969);
 Martin v. State, 452 S.W.2d 481 (Tex.Crim., 1970). The exer-
 cise of the trial   court's discretion is not appealable.  Kerry
 v. State, 452 S.W.?d 480 (Tex.Crim., 1970).

     This office is therefore of the opinion that a defendant
whose sentence is to be determined by the trial judge is not
under a burden of proof to establish eligibility for probation,
although the trial judge may in his discretion require such proof
as he deems appropriate.  Obviously a defendant may desire to
produce evidence to show that the ends of justice and the best
interests of the public, as well as himself, will be served by
a probated sentence and should have no ground for complaint if
he fails to do so and does not receive probation. At the same
time, the clear meaning of cases such as the Herring decision
is that an application for probation places no burden upon the
state to refute the defendant's eligibility for probation.


                        SUMMARY


        The trial judge has the discretion to grant
     probation when the judge is satisfied that the
     ends of justice and the best interests of the
     public and the defendant will be served by a
     probated sentence, and the defendant is not
     under a burden of proof to show eligibility
     for probation when the sentence is to be
     assessed by the judge, although the trial
     judge in his discretion may require such
     proof as he deems appropriate.  Art. 42.12,
     V.C.C.P.



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Honorable D. Brooks Cofer, Jr., Page 4    (M-882)



                              YourK very truly,




Prepared by Roland Daniel Green, III
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Larry Craddock
Sam Jones
John Banks
Fisher Tyler

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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