Because I cannot agree with the theory of estoppel applied by the plurality and since another approach seems more in keeping with the statutes, I must respectfully differ.
Section 3 of Article 42.12, V.A.C.C.P., has provided since its enactment as part of our present code of criminal procedure, in pertinent part:
*Page 270"The judges of the courts of the State . . . shall have the power after conviction or a plea of guilty . . . to suspend the imposition of the sentence and may place the defendant on probation. . ."1
It has always been so: See former Article 781b,2 C.C.P. 1925 and Article 781d,3 ibid. In terms, then, the probation law has never required a trial judge to enter a judgment of conviction in order effectively to grant probation.4
Under the 1947 statute the Court observed that whenever a judge of the trial court utilizes the Adult Probation and Parole Law "it is incumbent upon him to incorporate in hisorder or judgment the conditions upon which the accused is [probated] so that the accused and the authorities may know, with certainty, what those conditions are," Ex parte Pittman, 157 Tex.Crim. R.,248 S.W.2d 159, 165 (1952). In Walls v. State, 161 Tex.Crim. R.,273 S.W.2d 875 (1955), the Court found that the probation law "makes no mandatory provision that the conditions upon which probation is granted shall be entered in the minutes of the court," and concluded that prescribed conditions noted by the judge on "Court's Working Pad" kept in the office of the clerk of the court "meets the requirements set forth in the Pittman case," id., 273 S.W.2d, at 876. Since the 1957 enactment contained substantially the same provisions for granting and revoking probation, it "in effect adopted the construction placed upon the prior statute by the decisions of this Court," Stratmon v. State, 169 Tex.Crim. R., 333 S.W.2d 135, 138 (1960).
Not until the 1981 amendments to the code of criminal procedure did Article 42.01, V.A.C.C.P., expressly specify that in the event "probated punishment is assessed" a judgment must particularize that imposition of sentence is suspended and the accused is placed on probation, "setting forth the punishment assessed, the length of probation, and the probationary terms and conditions." See Acts 1981, 67th Leg., ch. 291, p. 809, § 111, effective September 1, 1981. Indeed, in Woods v. State, 532 S.W.2d 608 (Tex.Cr.App. 1976), "squarely faced with the question of when was punishment assessed" — whether it is when "the judgeannounces a term of years. . . or when he informs the defendant that the term announced must be served in [confinement] or under the supervision of a probation officer" — the Court gave the impression that it was the latter for purposes of filing motions for new trial or notice of appeal; however it promptly corrected that reading in Eastwood v. State, 538 S.W.2d 107, 108 (Tex.Cr.App. 1976), adding that "the judgment is the instrument which should indicate the granting of probation," id., at 108. But all of that, as well as what was said in Savant v. State, 535 S.W.2d 190 (Tex.Cr.App. 1976), is in relation to marking the beginning of time in which to seek a new trial or appeal. See also Pittman v. State, 546 S.W.2d 623, 624 (Tex.Cr.App. 1977).
It does not necessarily follow that an orally pronounced period of probation begins only when that declaration is reduced to a written judgment and entered in the minutes of the court. As with past decisions of the Court, so here, it occurs to me that a written order reciting, inter alia, that an accused "having been adjudged guilty" of the offense to which he plead guilty, is granted probation on specified terms and conditions will suffice to establish that he is then and there on probation.
So far as a written judgment is concerned, neither Article 42.01 nor any other provision of the code of criminal procedure has imposed a specified time by which one must be reduced to writing and entered.5 *Page 271 Indeed, Article 42.06, V.A.C.C.P., anticipates "a failure from any cause whatever to enter judgment" and authorizes entry of judgment "at any subsequent time" unless certain judicial acts not germane to our problem here have been taken in the interim. Therefore, I would regard the judgment dated June 30, 1980, but not entered until November 25, 1980, as the judgment in the cause before the trial court, but find that by reason of the written order placing appellant on probation he was in a probationary status beginning June 30.
For these reasons I concur in the judgment of the Court.
TOM G. DAVIS and MILLER, JJ., join.
[EDITORS' NOTE: THE OPINION ORIGINALLY APPEARING ON THESE PAGES WAS WITHDRAWN FROM THE BOUND VOLUME BECAUSE REHEARING WAS PENDING.] *Page 275