concurring.
While the majority opinion is sound as far as it goes, some further elaboration of the legislative changes recently promulgated in the areas of plea bargaining is in order lest the trial judge in this case believe that he may repeat this sort of chicanery with our judicial blessing.
It is initially important to clarify just what a judge has discretion to do in certain guilty plea situations. Specifically, once a judge exercises his discretion and decides to accept a plea bargain, does he then also have discretion to add conditions of probation not referred to in the plea bargain? Put another way, may the parties bind a judge as to what conditions of probation he may initially impose?
Trial judges are given broad discretion in the area of sentencing. The sentencing sub-areas of probation and plea bargaining are germane to the case at bar.
In the area of probation: Trial judges have the discretion to grant or deny an application for probation. See generally Art. 42.12, Notes 103-105, Y.A.C.C.P. If they decide to grant probation, they have wide discretion to impose reasonable terms and conditions of probation. Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976). They have discretion to modify conditions of probation at any time during the period of probation. Art. 42.12, Sec. 6(a), V.A.C.C.P., provides:
“The court having jurisdiction of the case shall determine the terms and conditions of probation and may, at any time, during the period of probation alter or modify the conditions; ...”
In the area of plea bargaining: Prior to 1977 the law was clear that the trial judge was not in any way bound by the plea bargain and regardless of any plea bargain he could assess punishment anywhere within the punishment range. Galvan v. State, 525 S.W.2d 24 (Tex.Cr.App.1975). The defendant, by freely and voluntarily pleading guilty, legally took his chances on what the punishment might be and was simply stuck with the unforseen decision of the trial judge. Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1975). In order to correct the perceived inadequacy in such a system the legislature took up the suggestion of Judge Roberts’ dissent in Gibson, supra:
“... when the trial judge rejects a plea bargain, the defendant, upon timely request, should have the right to withdraw his guilty plea.” Id. at 77.
Art. 26.13, V.A.C.C.P., was amended by the Acts 1977, 65th Leg., p. 748, ch. 280, Sec. 1, eff. Aug. 29, 1977, so that the trial judge who is not going to follow a plea bargain, as is clearly in his discretion, must inform the defendant of this fact and allow him to withdraw his plea.1 Realizing that plea bargaining is indispensible to the criminal justice system the legislature simply codified the teachings of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (cited by the majority).
In view of this codification, we are today faced with the question of'whether a trial judge, who in his discretion has decided to *424follow a plea bargain where probation is recommended, must impose only those terms and conditions of probation that are a part of the plea bargain. Does he retain the same discretion to set whatever terms and conditions he sees fit where there is a plea bargain as where there is no plea bargain?2
Art. 26.13 should be interpreted to mean that terms and conditions of probation, as well as the granting of probation itself, may be plea bargained for as surely as any other aspect of punishment. In fact probation conditions often are, and are in this case, the most severe consequences of the punishment hearing. As stated by Justice Whitham in his concurring opinion in Fogle v. State, 667 S.W.2d 296, 299 (Tex.App.—Dallas, 1984):
“As dissatisfaction with various aspects of the criminal justice system grows, there will be a tendency on the part of judicially activist trial judges to devise ‘innovative’ terms and conditions of probation. [footnote ommitted] These ‘innovative’ terms and conditions may well become the punishment imposed for the crime; subject to the requirement that it be reasonable.”
Actually, “interpreted” used above is a bit of a misnomer. We need only “take note” of the plain meaning of the words of the amendments to Art. 26.13 since 1977 to see that the legislature meant just exactly what it said: if a plea bargain has been struck, the trial judge must either accept it (in toto) or reject it and give the defendant an opportunity to withdraw his plea.
The applicant would have us hold that a trial judge is not bound by conditions of probation that are the subject of a plea bargain. Prior to the 1977 amendments to Art. 26.13 such a holding would have been a correct statement of the law but only because no subject matter in a plea bargain bound a trial judge. Gibson, supra. The non-binding status of a plea bargain was even codified in 1975 when the legislature amended Art. 26.13 as follows:
(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
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(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court. Acts 1975, 64th Leg., p. 909, ch. 341, Sec. 3.
Just two years later in 1977 the legislature’s amendment to Art. 26.13 plainly stated that whatever the plea bargain is, the trial judge either must follow it or allow the defendant to withdraw his plea.
I would therefore hold that (subject to the caveat in footnote 2) where a trial judge does not intend to follow the plea bargain, including agreements as to terms and conditions of probation, he must comply with Art. 26.13 and permit the defendant to withdraw his plea.
In the case at bar therefore while the trial judge did not abuse his discretion in adding as a term and condition of probation that petitioner serve thirty days in jail, he did not comply with the mandatory requirements of Art. 26.13. Petitioner does not complain of that non-compliance, however, and so the majority is correct in denying him relief until such time as he does so.
I concur in the result.
. Art. 26.13(a)(2) provides:
“(a) Prior to accepting a plea of guilty or plea of nolo contendere, the court shall admonish the defendant of:
(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permittéd to withdraw his plea of guilty or nolo contendere, and neither the fact that the defendant had entered a plea of guilty or nolo contendere nor any statements made by him at the hearing on the plea of guilty or nolo contendere may be used against the defendant on the issue of guilty or punishment in any subsequent criminal proceeding;”
. It must be remembered that these questions do not arise in a situation where the plea bargain expressly, by agreement, contemplates that the trial judge may decide the terms and conditions of probation. Nor is the mandate of Art. 42.12, Sec. 6(a), that the trial judge may alter or modify the conditions during probation affected. Of course, those modifications must be reasonable and have a reasonable relationship to the purposes of probation. Hernandez v. State, 556 S.W.2d 337 (Tex.Cr.App.1977).