.     .




    Hon. R. L. Whitehead           Opinion No. V-1411
    Criminal District Attorney
    Longview, Texas              Re: Allowing a person to
                                     make bond following
    Attention: Hon.'Paul Painter     arrest for a violation
               Assistant            'of probation .underthe
                                     Adult Probation and
                                     Parole Law pending
    Dear Sir:                        final decision.
              We quote from your letter asking for an opin-
    ion of this office as follows:
               '!Wewould like to know.~ifa person who
          has been found guilty of a felony and.given.
          a probated'sentence Is entitled to bond; eat
          any time after he has been arrested under
          the,provislonsof Sec. 5, Art. 81B, c.c.P-.,
          (Adult'Probation and Parole Law1 for vlola-
          tion of the terms of his probation. More
          speclfically,would a person convicted of
          a felony, probated under the Adult Probation
          and:Parole'Law,arrested as provided by said
          1aw;for violating the'terms'of sa'ld'proba-
          tlon, and evidence produced for the revoca-
          tion of said probation, be entitled to bond
          when and while the Court took the matter un-
          der advisement before.renderinghis decision?"
              The Adult Probation and Parole Law, Article
    781b, Vernon's Code of Criminal Procedure, Is intended
    to supplement the existing procedures and facilities
    for punishment and rehabilitation of persons convicted
    of crime. It makes provision for persons convicted of
    certain offenses to be released on probationby the Court,
    under proper supervision and under conditions prescribed
    by the Court. The'conditions of the probation are within
    the discretion of the Court.
              We quote from Article 781b as follows:
    .      .



        Hon. R. L. Whltehead, page 2    (V-1411)

,
                    "Section 1. The courts of the State of
               Texas having original jurisdictionof crlm-
               inal 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'subserved
               thereby, shall have the power, after convic:
               tlon or a plea of guilty for any crime or of-
               fense except murder, rape, and offenses against
               morals, decency, and chastity where thenmaxl-
               mum punishment assessed the defendant does
               not exceed ten (10) years Imprisonment,and
               where the defendant has not been previously
               convicted_ofa felony, to,suspend the imposi-
               tion or the execution of sentence and may
               place the defendant on probation for the max-
               imum period of the sentence imposed or If no
               sentence has been Imposed for the maximum      .
               period for which the defendant might have
               been sentenced, or Impose a fine applicable
               to the offense committed and also place the
               defendant on probation as hereinafter provided,
               Any such person placed on probation shall be
               under the supervision of such court and a pro-
               bation and parole officer serving such court
               as hereinafter provided.
                    “Sec. 3.  Such court shall determine the
               terms .andconditions of probation and may at
               any time during the period of probation alter
               or modify the conditions . . .
                    "Sec. 4. The period of probation shall
               be determined by such courts and may at any
               time be modified or terminated by such courts.
               . . .
                                                        .
                    “Sec. 5.  At any time during the period
               of probation such courts may Issue a warrant
               for violation of any of the conditions of the
               probation and cause the defendant to be arrested.
               Any probation and parole officer, police offi-
               cer or other officer with power of arrest may
               arrest such defendantwithout a warrant upon
               the request of the judge of such courts. A pro-
               bationer so arrested x   be detained in the
               county jail or other appropriate place of de-
               tention until he can be taken before the court.
   -      .




Hon. R. L. Whitehead, page 3    (V-1411)


       Such probation and parole officer shall forth-
       with report such arrest and detention to such
       courts and submit in writing a report showing
       in what manner the probationer has violated his
       probation. Thereupon, the court shall cause
       the defendant to be brought before It and; after
       a hearing without a jury, s   contlnue.or revoke
       the probation and shall In such case proceed to
       deal with the case as if there had been no pro-.-
       bation. . . . When he is notified that his pro-
       bation is revoked for violation of the condl-
       tlons of probation and he Is called on to serve
       a jail or penitentiary sentence he ma appeal
       the revocation." (Emphasis supplied.3
          In Wilson v. State, 240 S.W.2d 774 (Tex.,Crim.
1951)~,a case Involving the right of a convict to a jury
In a hearing on revocation of probation, the Court stated:
            "When a court extends clemency under the
       statute, the relationship existing is, in a
       way, contractual -- that is, the court agrees
       with the convict that clemency by way of pro-
       bation will be extended if he will keep and :
       perform certain requirements and conditions,
       the violation of which will authorize the
       revocation of,the probation. In this partic-
       ular, there exists the similarity existing
       in conditional pardons.
             "The convict surrenders no right, privi-
        lege, or conslderatlonfor the clemency ex-
       tended. In accepting the clemency, he does
        so under the conditions upon which It is ex-    .
        tended. Obviously, therefore, the proceeding
        to revoke probation is not a trial, as that
        term is used and contemplatedby the Constitu-
        tion in reference to~crlminal cases, and Is not
        ; ;;;;;e$ing required to be conducted as such
               .
          Eased upon the holding of the Court in the above
case, it Is our opinion that until the time of an actual
revocation of probation by the Court the disposition of
the probationer Is entirely within the Court's sound dls-
cretlon. We agree with you that the probationer has no
absolute right to a bond, but the Court may under its au-
release authorize a bond if it      SO
thority to provide the terms and conditions of the person's
                                  desires.



                                i
                             1. I
Hon. R. L. Whitehead, page 4    (V-1411)


                      SUMMARY


          Persons arrested for violation of proba-
     tions under Article 781b, V.C.C.P., do not
     have the right to make bond pending determin-
     ation by the Court as to a revocation of the
     probation, but the Court may, In its dlscre-
     tion, permit the probationer to make bond.

APPROVED: ,.                    Yours very truly,
                                  PRICE DAXIEL
                                Attorney General
E. Jacobson
Reviewing Assistant

                                BY
Charles D. Mathews                   Ned McDaniel
First Assistant                         Assistant

riMc:jmc




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