Honorable Albert W. Searcy     Opinion Wo. C-578
County Attorney
Kimble County                  Re:   May a judge, without the
Junction, Texas                      intervention of a jury,
                                     grant a defendant proba-
                                     tion under the terms of
                                     the Misdemeanor Probation
Dear Mr. Searcy:                     Law, X966?
        You have   requested an opinion of this office concern-
ing the granting   of probation under Article 42.13, Vernon's
Code of Criminal   Procedure of Texas, 1966.  More specifically,
your question is   as follows:
           "Does the Misdemeanor Probation Law
        of 1966 authorize a judge, without the
        intervention of a jury, upon a plea of
        guilty by a defendant and subsequent
        finding of guilty of said defendant by
        the court, to place said defendant on
        probation, or may probation be granted
        under this law only after a trial be-
        fore a jury?"
        Article 27.14, Vernon's Code of Criminal Procedure of
Texas, provides, in part, as follows:
          "A plea of guilty or a plea of nolo
       contendre in a misdemeanor case may be
       made either by the defendant or his
       counsel In open court; in such case,
       the defendant or his counsel may waive
       a jum, and the punishment may be as-
       sessed by the court either upon or with-
       out evidence, at the discretion of the
       court. . . .ll
        It seems clear that the Legislature has evidenced its
intent that defendants in all misdemeanor cases be entitled to
waive a jury and enter a plea of guilty before the court. The
article just quoted, of course, does not prohibit the entering
of such a plea when probation is a possible punishment.



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Honorable Albert W. Searcy, page 2 (C-578)


        We then must look ,toArticle 42.13, Section 3 which is
the operative portion of the Misdemeanor Probation Law. Sec-
tions 3(a) and 3(b) of said Article are as follows:
          "(a) A defendant who has been found
       guilty of a misdemeanor wherein the maxi-
       mum permissible punishment is by conflne-
       ment 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 which the maximum
       permissible punishment is by confinement in
       jail or exceeds a $200 fine;
          “(3)  he has not been granted probation
       nor been under psobation 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
       directs; and
          “(5)  the court belfeves that the ends of
       justice and the best interests of society and
       of the defendant will be served by granting
       him probation.
          "(b) If a defendant satisfies the require-
       ments of Section 3(a) (l), (2), (3), and (4)
       of this Article, and the jury hearing his case
       recommends probation in its verdict, the court
       must grant the defendant probation. The court
       may, however, extend the term of the probation-
       ary period to any length of time not exceeding
       the maximum time of confinement allowed by law.
       In the event probation is revoked in accordance
       with Section 6, the judgment of the court shall
       not prescribe any penalty in excess of that im-
       posed by the jury."
       It will be noted that Section 3 Is divided into four
   major divisions, (a), (b), (c) and (d). Divisions (a) and
   are applicable to the question at hand. It is the opinion



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Honorable Albert W. Searcy, page 3 (c-578)


of this office that Section 3(a) sets out the requirements and
procedure for the granting of probation when the defendant has
been found guilty of a misdemeanor by a court without the inter-
vention of a jury. It will be noted that Section 3(a) (5) places
discretion in the court for the granting of probation. Gener-
ally speaking, it simply states that the court may or may not
grant probation depending on whether he believes that the ends
of justice and the best interests of society and of the defend-
ant will be served by the granting of probation. This obviously
places discretion in the court.
        Then Section 3(b) states that if the defendant satisfies
the requirements of Section 3(a) (l), (2), (3) and (4), and the
jury hearing his case recommends probation In Its verdict, the
court must grant the defendant probation. It is felt partlcu-
larly significant to note that Section 3(a) (5) is omitted from
the requirements of Section 3(b). In other words, Section 3(b),
when speaking of the grantin of probation after a jury trial,
by the omission of Section 37a) (5) removes all discretion from
the court. It Is, therefore, the opinion of this office that
Section 3(a) is applicable after a finding of guilty of a de-
fendant by a court without the intervention of a jury and Sec-
tion 3(b) IS applicable to all jury trials in misdemeanor cases.
        We are of the opinion, therefore, that a judge, with-
out the intervention of a jury in a misdemeanor case, after a
finding of guilty of a defenda& who otherwise meets the require-
ments of the misdemeanor probation law, has the authority to
place the defendant on probation.
                           SUMMARY
           Under the Misdemeanor Probation Law of 1966,
        a court may, without the iriterventionof a jury
        upon a finding of guilty of a defendant In a
        misdemeanor case, place that defendant on pro-
        bation providing that all the other require-
        ments of the misdemeanor probation law are met.
                              Yours very truly,
                              WAGGONER CARH
                              Attorney General of Texas




SLK/lh/br

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Honorable Albert W. Search, page 4 (C-Y@)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Douglas Chilton
Howard M. Fender
Pat Bailey
W. 0. Shultz
APPROVED FOR THE ATTORNEY GENERAL
B-Y: T. B. Wright




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