Honorable Rayford A. Ratliff Opinion No. JM-798
Moore County Attorney
P. 0. Box 634 Re: Whether a defendant is
Dumas, Texas 79029 eligible for misdemeanor pro-
bation while he is serving a
probated felony sentence
Dear Mr. Ratliff:
You ask:
1. Does the term 'convicted' in article 42.12,
3a(b), Texas Code of Criminal Procedure mean a
'final conviction' as that term is developed in
Texas case law?
2. Is a criminal defendant eligible to apply
for misdemeanor probation while he is on felony
probation that has not been revoked and has not
terminated by operation of law?
Section 3a(b) of article 42.12(B). Texas Code of Criminal
Procedure, provides:
Where there is a misdemeanor conviction in any
court of this state and the punishment assessed by
the jury shall be by imprisonment in jail or by a
fine or by both such fine and imprisonment, the
jury may recommend probation for a period of time
not to exceed the maximum imprisonment applicable
to such offense of which the defendant is con-
victed, upon sworn motion made therefor by the
defendant, filed before the penalty stage of the
trial begins. When the jury recommends probation,
it may recommend that the imprisonment or fine or
both such fine and imprisonment found in its
verdict may be probated. If the jury recommends
probation for a person convicted of an offense
under Article 67011-l. Revised Statutes, and
punished under Subsection (c) of that article, it
may recommend that any operator's, commercial
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Ronarable Rayford A. Ratliff - Page 2 (JM-798)
,
operator's, or chauffeur's license issued to the
defendant under Chapter 173. Acts of the 47th
Legislature, Regular Session, 1941, as amended
(Article 6687b. Vernon's Texas Civil Statues), not
be suspended. When the trial is to a jury and the
defendant has no counsel, the court shall inform
the defendant of his right to make such motion,
and the court shall appoint counsel to prepare and
present same, if desired by the defendant. In no
case shall probation be recommended by the jury
except when the defendant, before the trial began,
had filed a sworn statement that the defendant has
never before been convicted of a felony, and after
conviction and before the penalty stage of the
trial benan, the. defendant- shali have filed a
sworn mo;ion for probation and the proof shall
show and the jury shall find in their verdict that
the defendant has never before been convicted of a
felony in this or any other state. This law is
not to be construed as preventing the jury from
passing on the guilt of- the def&dant,- b& the
defendant may enter a plea of not guilty. In all
eligible cases, probation shall be granted by the
court. if the jury recommends it in their verdict.
(Emphasis supplied.)
Your questions appear to be limited to trials before a jury since
in a trial before the court the judge
when it shall appear to the satisfaction of the
court that the ends of justice and the best
interests of the public as well as the defendant
will be subserved thereby, shall have the power,
after conviction . . . to suspend the imposition
of the sentence and may place the defendant on
probation . . . .
Code Grim. Proc. art. 42.12(B), 53.
You call attention to the holding in Ex parte Murchison, 560
S.W.2d 654 (Tex. Grim. App. 1978). that a conviction is not final for
the purpose of enhancement of punishment where the imposition of
sentence has been suspended and probation granted. A review of cases
collected under the Texas Penal Code, sections 12.42 (Penalties for
Repeat and Habitual Felony Offenders) and 12.43 (Penalties for Repeat
and Habitual Misdemeanor Offenders), reflects that the holding in e
parte Murchison is consistent with the holdings in a long line of
cases which have addressed the necessity of proving the finality of a
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Honorable Rayford A. Ratliff - Page 3 (JM-798)
conviction before it can be used for enhancement of punishment for
repeat offenders.
In the event a probated sentence has been revoked it has been
held to be a final conviction. Ex parte Murchison. supra. Your
concern is directed to a scenario "here the defendant is on felony
probation, and the probated sentence has neither been revoked nor
terminated by operation of law.
In Nealy v. State, 500 S.W.2d 122, 125 (Tex. Grim. App. 1973). it
was stated:
The judge or jury may grant probation only
-after conviction. Article 42.12, Sec. 3, Vernon's
Ann.C.C.P.; Article 42.12, Sec. 3a. supra. When
the probation is granted only the imposition of
the sentence is now suspended. See special
commentary by Judge Onion on Article 42.12,
V.A.C.C.P. Thus, the Adult Probation and Parole
Law affects sentencing only, not conviction.
In. Eines v. State, 495 S.W.2d 252 (Tex. Grim. App. 1973). the
court addressed the question of a defendant's eligibility to apply to
the jury for probation where he had been given a probated sentence, as
follo"s:
In his first ground of error appellant com-
plains of the trial court's refusal to allow
appellant to go to the jury at the punishment
phase for possible assessment of a probation
penalty. Article 42.12, Section 3a. Vernon's
Ann.C.C.P., provides:
'In no case shall probation be recommended
by the jury except when a sworn motion and
proof shall show . . . that the defendant
has never before been convicted of a felony
in this or any other state . . .'
Appellant's motion for probation affirmatively
shows that appellant had been given probation upon
a conviction for the offense of possession of
marihuana prior to the filing of his application
for probation in the instant case. By his own
motion, appellant admits facts that preclude a
jury from recommending probation.
While the above opinions concerned probation in felony cases, we
perceive no distinction in the application and proof required in
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Honorable Rayford A. Ratliff - Page 4 (JM-798)
felony and misdemeanor cases in order for a jury to consider
probation. Art. 42.12(B) subsections 3a(a) (felony) and 3a(b)
(misdemeanor) contain identical substantive requirements for a
defendant to be eligible for probation. Both provide:
In no case shall probation be recomrmended'by the
jury except when the defendant, before the trial
began, had filed a sworn statement that the
defendant has never before been convicted of a
felony, and after conviction and before the
penalty stage of the trial began, the defendant
shall have filed a sworn motion for probation and
the proof shall show and the jury shall find in
their verdict that the defendant has never before
been convicted of a felony in this or any other
state.
It is our opinion that the courts make a distinction in the meaning of
the term conviction in determining eligibility for probation under
section 3a of article 42.12(B) and the meaning of final conviction as
that term is used in determining whether a prior conviction may be
used for enhancement of punishment.
SUMMARY
A criminal defendant is not eligible to apply
for a recommendation of probation from a jury in a
misdemeanor case while the defendant is on felony
probation.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STZAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
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