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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