: J
THE AITOFUWEY GENERAL
OILFTrExAs
J&e Il. 1973
The Honorable Wiley L. Cheatham O~~B~OB No. H- 48
District Attorney
24th Judicial Dietrict Re: Whether a perron who
Cuero, Texam 77954 rsceivee a felony probated
rentence under Article
725b, Section 23(a), V. T. P. C.,
may under certain circum-
atanccr receive a recond
Deer Mr. Cheatham: felony probated eentence.
You have requcrtad the opinion of thir office on the following quertions:
“(1) If e perron receivea a felony probeted sentence
for a violation of the narcotic law under Penal Code, Arti-
cle 725b, Section 23(e). may a judge grant him another
probeted eentence for e later felony violation of Article
725b?
“(2)” Mey l defendant who her received e felony
probated lentence under Penal Code, Article 125b end
whose probetionery rentence haa run out by the kpre
of time. then receive a second felony probationary
sentence for either unlawful poeeeerion of a nercotic
drug (a felony) or rale of a narcotic drug (a felony)?
"(3) May a defendantwho bar received a felony
probationary sentence and had him probation terminated
by the court under C. C. P., Article 42.14, Section 7,
receive a necoad felony probated lentenca for a felony
conviction or either poereaeion or rat of narcotic drugr
under .Penal Coda 725b? ‘I
p. 198
The Honorable Wiley L. Cheatham, page 2 (H-48)
Article 725b, Section 23(a), V. T. P. C., provides:
“Except ae provided in Subeectionn (b) and (c)
of this section, any person who violates lny provision
of thin Act is guilty of a felony and upon e first con-
viction ie punishable by imprironment in the peniten-
‘.
tlary for not leei’ than two yeara nor more’ than life;
end upon a second or rubrequent conviction, he ie
punishable by imprisonment in the penitentiary for
not leer than 10 years nor more than life. Suspended
rentence or prohation under the Adult Probation and
Parole Law in not availeble to a peraon upon a ,eecond
or clubsequent conviction. ”
This statute ueee the same language regarding both enhanced een-
tences and the availability of probation. ‘I. . . upon a second or subsequent
conviction. ” Both probation and the possibility of an enhanced sentence
are dependent upon whether there was e prior conviction for a violation
of this act. It is our opinion that the Legislature, by thie uoe of the same
language in these two auccesrive sentencee, intended that the came mean-
ing for “conviction” apply in both eituationr.
Because this article provides for enhanced punishment for second
and subsequent violations of the Narcotic Drug Act, it has been held that
a prior violation may not be used to enhance punishment under the provisiona
of Article 62 and 63, V. T. P. C. Heredia v. State, 468 S. W. td 833 (Tex.
Crim. 1971). However, authoritative interpretationr of Article 63, V. T. P. C.,
may be helpful in understanding it.
Article 63, V. T. P. C., provide*:
“Whoever shall have been three timer convicted
of a felony leer than capital ehall on ruch third convictioh
be imprironed for life in the penitentiary. ”
Like Article 725b. it predicater enhanced punirhment upon a prior
conviction or convictions. In White v. State, 353 S. W. 2d 229 (Tex. Crim.
p. 199
The Honorable Wiley L. Cheatham, page 3 (H-48)
1962), the court considered the iarue of what conatitutea a prior conviction
under Article 63, V. T. P. C., and came to the following conclurion:
“The pronouncement of sentence upon the
defendant in all felony cases lear than capital in
errsential to a final judgement of conviction. In the
absence of any evidence showing a final conviction
of the appellant in the two prior convictions alleged
for enhancement, the evidence im insufficient to
support the conviction.
. . .
“The mandate off Article 42.02, V. T. C. C. P.]
requires that the sentence order the judgment of the
court be carried into execution. In a felony case,
the skntence is the final judgment of conviction, with-
out which there is no final conviction. ”
It is therefore clear that, for purpoee.9 of enhancing punishment for prior
convictions, the prior conviction must be one that ia final, meaning aantence
has been pronounced ordering the judgment be carried into execution.
Section 3 of Article 42.12, V. T. C. C. P., provideo in part:
9,
. (Clourts . . . shall have the powers, after
. .
conviction or a plea of guilty . , . , to luepend the
imporition of the sentence and place the defendant
on probation . . , .”
Under the probation law, sentence io not pronounced but in deferred.
See Tee1 v. State, 432 S. W. 2d 911 (Tex. Crim. App. 1968). Therefore a
sentence which has been probated is not final and ir not a conviction for
purposes of enhancement under Article 725(b), V. T. P. C., nor for purpoaer
of preventing probation thereunder.
We therefore answer your first question that a person who is under
probated sentence for a violation of Article 725b. Section 23 (a), V. T. P. C.,
p. 200
. .
The Honorable Wiley L. Cheatham, page 4 (H-48)
may be granted another probated leotence for a later felony violation of
that article.
Your recond and third queetionr concern the eituation where a .
probated defendant hae completed hie full period of probatidn by the lap?= .’
of time or hae had hir probation terminated by the court under Article
42.12, Section 7,’ V. T. C.C. P. , which provider in part:
“At any time, the defendant haa l
after atimfactorily
completed one-third of the original probationary period
or two year@ of probation, whichever ia the leraer, the
period of probation may be reduced or terminated by the
court. Upon the satisfactory fulfillment of the conditions
of probation, and the expirationof the period of probation,
the court, by order duly entered, shall amend or modify
the original sentence imposed, if necerrary, to conform
to the probation period, and shall dircharge the defendant, ”
Where the defendant hao satisfactorily completed hi8 period of probation,
the court ie required to discharge him, and in fact never pronouncee sentence
ordering execution of the judgment of the court, aa would constitute a final
judgment of conviction sufficient to clupport enhancement. See White v.
State, supra. It ia therefore our opinion that a defendant who haa success-
fully completed by lapse of time a prior probated sentence for a violation
of Article 725b, Section 23(a), V. T. P. C., ia not thereby prohibited from
receiving a second probated sentence for a felony conviction thereunder.
Similarly, to answer your third question, where the prior probationary
sentence bar been terminated by court order under Section 7, Article 42.12,
V.T.C.C.P., the defendant ia eligible to receive a recond felony probated
rentence for a felony conviction for either poreerrion or rale of narcotics
drug* under Penal Code, Article 725b.
SUMMARY
Under Article 42.12, Vernon’6 Texan Code of
Criminal Procedure, a probated sentence ir not a
p. 201
.
The Honorable Wiley L. Cheatham, page 5 (~-48)
final conviction which would eerve to enhance the
punishment for a second conviction. Therefore,
a person who received a probated renteocc under
Article 725(b), Section 23(c), V. T. P. C., may
receive a second proheted sentence before the
expiration of the period of probate for the prior
sentence, before he has concluded hir period of
probation by lapse of time or hae had the period
altered by order of the court.
Very truly your*.
General of Teur
APP&qVED:
lb--d-w
DAVID M. KENDALL, Chairman
Opinion Committee