Hon. J. M. Kolander        Opinion No. S-63
County Attorney
Potter County              Re: Applicability of the Adult
Amarillo, Texas                Probatlon'and Parole Law to
                               probations under the 1953
                               amendment to the Mlsde-
Dear Sir:                      meanor DWI Law.
          You have requested an opinion on the construc-
tion of Article 802, Vernon's Penal Code,,as amended by
Chapter 167, Acts of the 53rd Legislature,,l953, page
480. Your questions arenas follows:
          "1. What type of probation is contem-
     plated by the statute?
          "2.'Can the probationary period be for
     a longer term than the maximum jail term set
     by the statute.?"
            particle 802 as amended;provldes:
         ."Any person who drives or operates an
     automobilesor any other motor vehicle 'upon
     any public road or'highway in this State, or
     upon any street or alley within the.limits
     of an Incorporated city, town or village,
     while such person is intoxicated or under~
     the Influence of intox+atlng liquor, shall
     be guilty of a misdemeanor and upon convic-
     tion shall be punished by confinement In the
     county jail for not less than three (3) days
     nor more'than two (2) years, and by a fine
     of not less than Fifty   50.05j3ollars nor
     more than Five Hundred 8 500.00) Dollars. !
     Provided, however, that the presiding judge
     In such cases at,his discretion may commute
Hon. J. M. Kolander, Page 2 (S-63)


     said jail sentence to a prabation period
     of not less than six (6)~months." (Emphasis
     added.)
          Article 802 was amended by the 53rd Legisla-
ture by inserting the underlined word "and" in lieu of
the word 'or' and by adding to its provisions the under-
scored words. Therefore,,Article 802 was amended by
making a mandatory jail sentence and authorizing the
presiding judge.in such case to commute said jail
sentence to a probation period of not less than six
(6) months. Prior to the amendment in 1953, the county
court did not have authority to place persons convicted
in such courts under probation. Ex Parte Hayden, 215
S.W.2d 602 (Tex.Crim. 1948): Attorney General's Opinion
v-415 (1947)‘. Under the.1953 amendment, county courts
now have specific authority to place persons convicted
in such courts for violation of the provisions of
Article 802 oq probation.
          Probation, as it is hewn and applied in this
State, Is well defined in the Adult Probationand. Parole
Law. Article 78lb,.Vernon's Code Criminal Procedure.
          In answer to your second question, it Is notes
that the probation shall be not less than six months.
It maynot extend longer than the maximum jail term
assessed.under Article 802 of Vernon's Penal Code., Ex
Parte Davis, 253 S.W.2d 664 (Tex.Crim. 19 2); Ex Par-i%
Fernandez, 241 S.W.2d 155 (Tex.Crlm. 19515 .     .

                         SUMMARY

          A ~defendantconvicted under the mlsde-
     meanor D.W.I. Law may‘be placed on probation
    'for not less than six (6) months nor for a
     longer period than the maximum jail term
     assessed under Article 802, Vernon's Penal
Honk.J. M.~Kolander, Pa8 e 3 (S-63)


    Code. The type of probation is the same
    as that defined in the Adult Probation
    and Parole Law.
                                 Yours very truly,
APPROVED:                        JOHN BEN SHEPPERD
                                 Attorney General
J. C. Davis, Jr.
County Affairs Division
Willis E. Gresham
Reviewer
                                          Assistant
Burnell Waldrep
Executive Assistant
                                                      I

John Ben Sheppard
Attorney General
JR:am




              .
                                            Probation         for   DWI

                 The Coast       Of    Criminal     Appeals         has    just     held    in Gilderbloom         v. Texas
that a defendant         conricted      under     the misdemeanor                 DWI      law    could   not constitutioo-
3&. be placed          on probation.

                 This offke         had previously         held     in Opinion          S-63      that the Legislature
intendad      to authorizzprobation             in such       cases,      but this      opinion      did not pass      on
.&      c-titdiandi~d             the article      in question.            (Article        802,    V.P.C.).

                 .Tka.  *effect     of our Opinion   S-63 has                       been     overruled        by the Court’s
 j&i-           m~patitnt.      part of their ruling  reads:

                 -we      hdithat      the proviso        which        authorizes          commutation        of the
         +I   sstacr       iarmconstitutional           and    inoperative,           but that the remainder
         of-A&k&d.”
