Honorable Frank Briscoe           Opinion No. C-492
District Attorney
Harris County                     Re:   Constitutionality of the
Houston, Texas                          Misdemeanor Probation Law
                                        of 1965.
Dear Mr. Brlscoe:
       You have requested our opinion on the validity of House
Bill 395, Acts of the 59th Legislature, Regular Session, 1965,
Chapter 164, page 346, compiled In Vernon's as Article 784a,
Vernon's Code of Criminal Procedure, known as the Misdemeanor
Probation Law of 1965.
       Sections 3, 4, 6 and 8 of the Misdemeanor Probation Law
of 1965, read as follows:
            "Sec. 3. (a) A defendant:who has been found
       guilty of a misdemeanor wherein the maximum permis-
       sible punishment is by confinement in jail or by a
       fine in excess of $200 may be granted probation if:
           (1) he applies in writing to'the court for
      probation before trial;
           (2) he has never before been convicted in
      this or another jurisdiction of a felony or of a
      misdemeanor for ivhichthe maximum permissible
      punishment is by confinement in jail or exceeds a
      $200 fine;
           (3)  he has not been granted probation nor
      been under probation under this Act or any other
      Act in the preceding five years;
           (4) he has paid all costs of his trial and
      so much of any fine imposed as the court dlre,cts;
      and
            (5)  the court believes that the ends of jus-
       tice and the best interests of society and of the
       defendant will be served by granting him probation.


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Hon. Frank Briscoe, page 2 (C-492)

           (b) If a defendant satisfies the reauire-
      ments of Section 3(a) (l), (2), (3), and (4) of
      this Act, and the jury hearing his case recommends
      probation in its verdict, the court must grant
      the defendant probation. The court mav, however,
      extend the term of the probationary period to any
      length of time not exceeding the maximum time of
      confinement allowed by law. In the event proba-
      tion is revoked in accordance with Section 6, the
      judgment of the court shall not prescribe any
      penalty in excess of that imposed by the jury.
           (c) A defendant's application for proba-
      tion must be made under oath and must also con
      tain statements (1) that he has never before been
      convicted in this or another jurisdiction of a
      felony or of a misdemeanor for which the maximum
      permissible punishment is by confinement in jail
      or exceeds a $200 fine, and (2) that he has not
      been granted probation nor been under probation
      under this Act or any other Act in the preceding
      rive years. The application may contain what
      other information the court directs.
           (d) When a defendant has applied for pro-
      bation, the court during the trial of his case
      must receive competent evidence concerning the
      defendant's entitlement to probation
           "Sec. 4. (a) When a defendant is granted
      probation under the terms of this Act, the find-
      ing of guilty does not become final, nor may the
      court render judgment thereon, except as provided
      in Section 6 of this Act.
           (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. The court's records
      may not reflect a final conviction, however, un-
      less probation is later revoked in accordance with
      Section 6 of this Act."
           "Sec. 6. (a) If a probationer violates any
      term of his probation, the court may cause his
      arrest by warrant as in other cases. The proba-
      tioner upon arrest shall be brought promptly be-
      fore the court causing his arrest and the court,

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         Hon. Frank Briscoe, page 3 (C-492)


                upon motion of the state and after a hearing
                without a jury, may continue, modify, or re-
                voke the probation as the evidence warrants.
                     (b) On the date the probation is revoked,
                the finding of guilty becomes final and the
                court shall render judgment tnereon against the
                defendant   The judgment shall be enforced as in
                other cases and the time served on probation may
                not be credited or otherwise considered for any
                purpose."
                     "Set 8. (a) A probationer, at the time he
                is granted probation, may appeal his conviction
                as in other cases. He may also appeal the re-
                vocation of his probation, but the revocation may
                not be set aside on appeal without a clear show-
                ing of abuse of discretion by the revoking court.

                     (b) The refusal of a court to grant pro-
                bation is not appealable unless the jury hearing
                the case has recommended probation in its verdict
                and the defendant has satisfied the requirements
                           3(a)
                ;cf.Sf;ction    (l), (2), (31, and (4) of this

                In passing on the validity of the Suspended Sentence Law
         of the 33rd Legislature, the Court of Criminal Appeals, in E%ker
                                                                    _.A...
         v,,State, 158 S.W. 998 (1913) stated:
                    "There is no doubt but what the Constitu-
               tion confers upon the Governor the sole and ex-
               clusive right to grant pardons, and that the
               Legislature, courts, nor juries can usurp nor
               have that authority conferred on them. But the
               Constitution also confers upon the Legislature
               the authority and power to define crimes and
               fix the punishment therefor, and when they enact
               a law defining a crime and fixing the penalty,
               unless vetoed by the Governor, it becomes the law
               of the land. They would have the authority and
               power to define burglary as an offense, and pro-
               vide that when a person is charged with the.or-
               fense he may, by showing that this was his first
               offense, be noif’~inidhetl at all, but that for
               the second or any subsequent offense he should
               be punished as the act should provide. * . ."
                     It is our opinion that the probation provisions of the
         Act in question constitute part of the punishment provided by the
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Hon. Frank Briscoe, Page 4 (C-492)


Legislature to be inflicted on those who offend against our
criminal laws and do not interfere with the power of the Gover-
nor conferred by the provisions of Section 11 of Article TV of
the Constitution of Texas.
        Analyzing the provisions of the Misdemeanor Probation Law
of 1965, in accordance with the principle of law announced by the
Court of Criminal Appeals in the foregoing case, it is noted that
the Legislature has prescribed the punishment of a defendant who
has been round guilty of a misdemeanor and who falls within the
provisions of Section 3 of said Act, and has authorized the court
to impose the punishment according to the terms and conditions of
probation set out in Section 5 of the Act, and authorizes the
court to impose additional punishment under the provisions of
Section 6 if the probationer violates any term of his probation.
Furthermore, Section 8 of this Act authorizes such person to ap-
peal his conviction as in other cases. We are therefore of the
opinion that the provisions of the Misdemeanor Probation Law of
1965 constitute an exercise of legislative authority to define
crimes and fix the punishment therefor, rather than an interfer-
ence with the executive power conferred by Section 11 of Article
IV of the Constitution of Texas. Section 11A of Article IV of
the Constitution of Texas, added in 1935, provides:
            "The Courts of the State of Texas having
       original jurisdiction of criminal actions shall
       have the power, after conviction, to suspend
       the imposition or execution of sentence and to
       place the defendant upon probation and to re-
       impose such sentence, under such conditions as
       the Legislature may prescribe." (EiiYiihZZEXEd).
       In FX parte Hayden, 215 S.W.2d 620 (1948), the Court of
Criminal Appeals construed the provisions of Section 11A as fol-
lows:
            "The provisions of the Constitution are
       to be strictly construed and should be allowed
       no liberality of meaning where such provisions
       are to be passed upon and are plain and unambigu-
       ous . Notice is therefore taken of the word
       'sentence' in the above amendment.
            "'Judgment' and 'sentence' are not the same
       thing; the two are distinct and independent. In
       misdemeanor cases, a verdict of guilty is itself
       the judgment of conviction. No formal sentence
       is required. A formal sentence is not necessary

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Hon. Frank Briscoe, page 5 (C-492)


       in a prosecution for a misdemeanor. In felony ',
       cases, it is the duty of the judge to pronounce
       sentence on the judgment of conviction, and the
       sentence is in fact the final judgment of the
       case. See 12 Tex.Jur., p. 717, sec. 355, and
       p. 685 set, 334, idem; also Articles 782, 783,
       and 784 C.C.P. In Chapter 3 under Title 9,
       C.C.P., relating to jud ent and sentence in
       cases of felony, Art. 7 t?
                                7, reads as follows:
       'A "sentence" is the order of the court, made
       in the presence of the defendant, and entered of
       record, pronouncing the judgment, and ordering
       the same to be carried into execution in the man-
       ner prescribed by law.'
           "It appears, therefore, that there exists
      a difference between a judgment and a sentence;
      and the Legislature, having before it the pre-
      vious enactments relative thereto, as well as
      Section 11A of Article IV of the State Constitu-
      tion, evidently had such in mind when it passed
      House Bill No. 120, and only referred to Isen
      tences' and refrained from the use of the word
      'judgment'. Under such a condition, we express
      ;!!!5&p&!$-ytt~             q$ i;$ ¶iF;;; pj,,
             ,
      Courts, or County Courts at Law with criminal
      $risdiction In this state. . . ." (Emphasis added).
It is noted that Ex parte Hayden specifically held that the Adult
Probation and Parole Act of the 50th Legislature did not apply
to judgments in the County Courts or County Courts at Law with
criminal jurisdiction in the State. It is further noted, however,
that Ex parte Hayden did not modify the principles of law announc-
ed in Bakery   State, supra, which principles of law are applic-
able not only to felony cases but misdemeanor cases.  Ex parte
Hayden merely held that the provq~sionsof the Adult Probation and
Parole Act of the 50th Legislature were limited to the suspension
of sentences and did not apply to the suspension of judgment,
and therefore could not apply to County Courts or County Courts
at Law with criminal jurisdiction. Ex parte Hayden expressed no
opinion concerning the power of the Legislature to enact pro-
visions authorisina Countv Courts and Countv Courts at Law to
impose the punishment probided in House Sill 395, Acts of the
                   Likewise Waggoner v. State, 275 S.W.2d 821
~~~~.~???$$~rkes    not pas: on the constitutional authority of
the Legislature to define the crime and fix the punishment'there-
for, as provided in House Bill 395, Acts of the 59th Legislature

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Hon. Frank Briscoe, page 6 (C-492)


       You are therefore advised that it is our opinion that the
validity of House Bill 395 of the 59th Legislature is governed
by the principles of law announced~in Baker v. State, supra.
Applying such principles, you are advised that the provisions of
the Misdemeanor Probation Law of 1965 are valid and constitution-
ai.

                         SUMMARY     "-
        Th provisions of House Bill 395, Acts of the
                                  Session, 1965,
                               compiled in Vernon's
                                  Code of Criminal
        Procedure, known as the Misdemeanor Probation
        Law of 1965, are valid and constitutional.
        Baker v. State, 158 S.W. 998 (1913).

                               Yours very truly,
                               WAGGONER CARR
                               Attorney General


                               By++
                                L,'
                                   John Reeves
                                   Assistant
JR:ms
APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Roger Tyler
Bob Flowers
Harold Kennedy
Lonnie Zweiner
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright




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