                                                                R-979




Honorable Thos. E. Hayden, Jr.      Opinion No. V-458      .
District Attorney, 42nd District
Abilene., Texas                     Re:   The authority of a Dis-
                                          trict Judge to probate the
                                          sentence of a defendant
                                          whose conviction by the
                                          trial court occurred prior
                                          to the effective date of
                                          H. B. 120, 50th Legisla-
                                          ture .

Dear Sir:

          You state that a defendant was tried in the 42nd District
Court of Taylor County on June 4, 1947, and his punishment as-
sessed at two years confinement in the penitentiary; that the, con-
viction ‘was affirmed by the Court of Criminal Appeals on Novem-
ber 12, 1947, and the mandate has been returned to the District
Clerk. You request our opinion as to~whetber the District Judge
has the authority to place this defendant on probation by virtue of
House Bill No, 120, Acts 50th Legislature (The Adult Probation
and Parole Law), which became effective on September 5, 1947.

          In our Opinion No. V-415 we upheld the constitutionality
of Sections 1 through 6, which authorize the courts to place con-
victsd defendants on Probation. We are enclosing a copy of that
opinion. We did not pass upon your identical question in that opin-
ion, but refer you specifically to pages 7, 8, 9, 10, 11, 12 and 13,
which we believe bear upon your inquiry. It is evident that tha
provisions of H. B. 120, in June, 1947, did not constitute  part of
the punishment to be inflicted on those who offend against our
criminal laws and could not bs read into the various provisions
of our penal code in defining crimes +d prescribing the penal-
ties for a violation thereof, as this probation law did not go into
effect until September 5. You will also note that in Section 6 of
the Act, the Legislature used the following language: ‘The right
of the probationer to appeal to the Court of Criminal Appeals for
a review of the trial and conviction, as provided by law, shall be
accorded the probationer at the time he is placed on probation.”
It seems clear from the above language that the Legislature con-
templated the aourt to exercise its right of probation before the
court lost jurisdiction by the defendant perfecting his appeal.
Furthermore, when the Court of Criminal Appeals affirms a
    Honorable Thos. E. Hayden, Jr.> Page 2 (V-458)



    case and sends its mandate to the clerk of the convicting court for ‘.
    observance, we are of the opinion that the lower court only ac-
    quires jurisdiction to carry out the prior sentance in conformity
    with the mandate.

             It is therefore our opinion that the District Judge does
    not have the authority to place a defendant on probation who was
    convicted before the effective date of H. B. 120, 50th Legislature,
    and whose conviction was affirmed by the Court of Criminal Ap-
    peals after the effective date thereof.

                                SUMMARY

             The District Judge does not have the authority to
        place a defendant on probation who was convicted
        prior to September 5, 1947, the effective date of H.B.
        120 (The Adult Probation and Parole Law) and whose
        sentence of conviction was affirmed by the Court of
        Criminal Appeals after the effective ~date thereof.

                                          Yiburs very truly

                               ATTORNEYGENEtiLOFTEXAS




                                          W. V. ‘Wppert
                                             Assiihnt
    WVG/JCP


                               APPROVED           ,     ,



                               AfTORNEY      GENERAL




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