                        The Attorney               General        of Texas
                                                February   27, 1978
JOHN L. HILL
Attorney General


                    Honorable Wilson E. Speir                     Opinion No. H-1128
                    Director of Public Safety
                    P. 0. Box 4087                                Re: Whether a court is required
                    Austin, Texas 78773                           to report certain convictions to
                                                                  the Department of Public Safety
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                                                                  where probation is granted.
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                    Dear Mr. Speir:

                           YOU ask whether a judge may grant probation to a defendant convicted
                    of a traffic. offense punishable by fine only. Article 4, section llA of the
                    Texas Constitution    provides for probation of convicted defendants under
                    conditions prescribed by the Legislature.   This section of the constitution is
                    not self-enactii,    Burson v. State, 5B S.W.Zd 948 (Tex; Crim. App. 1974);
                    State v. Klein, 224 S.W.2d 250 (Tex. Crim. App. 19491, and article 42.13 of the
                    Code of Criminal Procedure is the enablii     act for misdemeanor orobation.
                    Lee v. State, 516 S.W.2d 151(Tex. Crim. Aps. 1974h see also Attorney General
                    Opinion C-492 (1965).

                           The court has authority under certaii circumstances to grant probation
                    to a defendant found guilty of a misdemeanor “wherein the -maximum
                    permissible punishment is by confinement in jail or by a fine in excess of
                    $200.” Code Crim. Proc. art. 42.13, S 3(a). Probation may not be granted
                    under article 42.13 for offenses where the maximum punishment is a fine of
                    two hundred dollars or less. See Attorney General Opinion C-515~(1965). If a
                    traffic offense is punishable ay by a fine of two hundred dollars or less, see,
                    s,     V.T.C.S. art. 6701d, S 143(b), probation is not available to a defendant
                    found guilty of it. We note also that justices of the peace have jurisdiction in
                    criminal cases only where the fine does not exceed two hundred dollars and
                    thus do not have occasion to grant probation under article 42.13. See Code
                    Crim. Proc. art. 4.b Em                  325 S.W.2d 386 (Tex. Crim. AE1959).
                    The jurisdiction of corporation courts is similarly limited. Code Crim. Proc.
                    art. 4.14; Ex parte Seals, 255 S.W.2d 215 (Tex. Crim. App. 1952). When a
                    defendant is found guilty of a traffic offense punishable by a fiie in excess of
                    two hundred dollars, see, e.g., art. 67Old, SE 159, 162, he may seek probation
                    under article 42.13.




                                                  P- 4603
Honorable Wilson E. Speir    -   Page 2   (H-11281



     You next inquire about the application of article 6687b, section 25(b) in cases
where the defendant receives probation. Section 25(b) provides in part:

                Every court having jurisdiction over offenses committed
            under this Act, or any other Acts of this State regulating the
            operation of motor vehicles on highways, shall forward to
            the Department a record of the conviction of any person in
            said court for a violation of any said laws . . . .

Section 25(e) defines “conviction” as a final conviction.       Section    4(a) of the
Misdemeanor Probation Law provides as follows:

                Sec. 4. (a) When a defendant is granted probation under
            the terms of this Act, the finding of guilt does not become
            final, nor may the court render judgment thereon, except as
            provided in Section 6 of thii Article.

                (b) The court shall record the fact and date that
            probation was granted on the docket sheet or in the minutes
            of the court. The court shall also note the period and terms
            of the probation, and the details of the judgment.       m
            court’s records may not reflect a final conviction, however,
            unless probation is later revoked in accordance with Section
            6 of thii Article.

 (Emphasis added). Since the probated judgment is not a final conviction, the court
 is not required by article 6687b, section 25(b) to forward it to the Department of
 Public Safety. Attorney General Opinions M-673 (1970); M-498 (1969); C-515 (1965);
.compare Attorney General Gpinion M-1057 (1972) (felony conviction may become
 final despite probation under article 42.12). See also Standifer v. Texas Department
 of Public Safety, 463 S.W.2d 38 (Tex. Civ. App. - Houston U4th Did.1 1971, no
 writ). However, the Misdemeanor Probation Act itself requires that a copy of each
 probationer’s fingerprints be sent to the Department, and that the Department keep
 a record of misdemeanor arrests and their disposition. Code Crim. Proc. art. 42.13,
 S 5(b).

       You also inquire about the validity of a judicial order granting probation
which you submitted to us. Since we do not review judgments of the trial courts Of
this State, we decline to answer thii question. -See Attorney General Opinion H-905
(1976).

                                   SUMMARY

            Misdemeanor probation under article 42.13 of the Code of
            Criminal Procedure is not available to defendants convicted
            of an offense with a maximum punishment of a fine not to




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Honorable Wilson E. S@r   -   Page 3    (H-1128)



          exceed two hundred dollars.       When a defendant receives
          probation under article 42.13, hi conviction is not final.




                                        JOHN L. HILL
                                        Attorney General of Texas

APPROVED:




C. ROBERT HEATH, Chairman
Opiion Committee .

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