dissenting.
The issue that is presently before this Court is whether the trial judge, Hon. Michael T. McSpadden, had the lawful authority to impose upon Michael A. Washington, applicant, a condition of probation that requires Washington to be confined in the Harris County jail for 30 “straight” days.
Because of the issue that is presently before this Court, I would treat the application for writ of mandamus that the applicant has filed as an application for writ of habeas corpus, which would comport with this Court’s prior decision of Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1974).
I first observe that when a trial judge assesses the punishment, and probates same, he is not limited in setting the conditions of probation to the suggested statutory conditions of probation. However, his discretion is not unlimited because the terms and conditions that are imposed must have a reasonable relationship to the treatment of the probationer and the protection of the public. Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976). Furthermore, his authority is additionally limited when the punishment that is assessed is done pursuant to a plea bargain agreement between the parties.
In this instance, the majority erroneously upholds a condition of the applicant’s probation that was granted by Judge McSpad-den, which condition requires that the applicant must serve 30 “straight” days in the Harris County jail.
The majority uses the following reasoning to uphold the condition of probation that Judge McSpadden imposed. “Since the granting of probation is clearly within the judge’s power, the decision to require applicant to serve 30 days as a condition [of his probation] is clearly a discretionary act.” (Maj. opinion at page 422). The majority then holds that Art. 42.12, Sec. 6b(a) and (b), V.A.C.C.P., as then worded, gave Judge McSpadden the authority to impose the above condition of probation. I respectfully disagree with both the majority’s reasoning and the holding it makes.
Had there been no plea bargain agreement as to punishment, the majority’s reliance upon the above statutory provisions might not be misplaced. But in this instance there was a plea bargain agreement that did not call for the applicant to serve any time in the Harris County jail.
The record clearly reflects that all agreed that in exchange for a plea of guilty from the applicant, his punishment would be assessed at four years’ confinement in the penitentiary, with same to be probated for a like period of four years. Judge McSpadden did in fact assess punishment in accordance with the plea bargain agreement. However, he imposed as a condition of the probation the condition that applicant must serve 30 “straight” days in the Harris County Jail, which was contrary to the plea bargain agreement that applicant had entered into with the prosecutor.
A clear reading of the provisions of Art. 42.12, Section 6b(a) and (b), supra, reflects a legislative intent that the imposition of a condition of probation that calls for the probationer to serve jail time was to be used by trial judges as a form of punishment for the underlying offense and not as a condition of probation intended to aid in the rehabilitation of the probationer. Furthermore, as a matter of law, the jail time condition can be imposed only at the time the defendant is granted probation, whereas all other conditions of probation can be imposed at any time during the probationary period.
Furthermore, since the jail time condition that is provided for by Section 6b(a) and (b) is a form of punishment, it is subject to *427plea bargain agreement limitations. Since the plea bargain agreement in this instance made no mention of any Section 6b jail time, the imposition of such as a condition of probation by Judge McSpadden was therefore outside the parameters of the plea bargain agreement that appellant had entered into. Thus, because confinement in the county jail was not a part of the plea bargain agreement, Judge McSpadden was precluded and prohibited from assessing any jail time as a condition of probation. Thus, applicant is entitled to relief.
There is yet another reason why the applicant is entitled to relief.
The majority assesses the behavior of Judge McSpadden in this manner: “[T]he actions of the respondent [trial judge] in this cause are hardly models for judicial behavior.” I agree. The record clearly reflects that, rather than acting as a trial judge should act, Judge McSpadden, instead, acted much like a military drill instructor might act when dealing with a raw recruit.
The record reflects that prior to the time applicant first responded with a “Yes,” rather than a “Yes, Sir,” to a question that Judge McSpadden had asked him, he had responded 17 times with a “Yes, sir,” or a “No, sir.” After being admonished by Judge McSpadden, “Everytime you say ‘yes,’ I want a ‘sir’ behind it,” applicant then responded with a “Yes, Sir,” or a “No, Sir,” 11 times to questions asked of him by Judge McSpadden. However, applicant eventually slipped when Judge McSpadden asked him the following simple question, “Are you working now?”, by answering same, “Yes, part-time.” He was again admonished by Judge McSpadden: “I swear to God — how long does it take you to listen? Everytime a ‘yes’ comes out of your mouth, you better say ‘Yes, Sir.’ ” Applicant was then warned by Judge McSpad-den: “The next ‘Yes’ that comes out of your mouth without a ‘sir’ behind it, you are going to get 30 days.” Like many a raw recruit has done before, when similarly admonished by a drill instructor, applicant eventually goofed again when he responded to a simple question that Judge McSpad-den asked him, by replying with a simple “Yes.” Judge McSpadden then summarily sentenced the applicant to serve 30 days’ in the Harris County jail, not for contempt of court, but as a condition of his probation.
I have carefully read the transcription of the proceedings and am unable to conclude that the above reflects that the applicant showed or indicated any disrespect, sarcasm, or the like towards Judge McSpad-den.
The record is thus clear that the 30 days’ jail time condition of probation that Judge McSpadden imposed upon the applicant was imposed as a form of punishment for which Judge McSpadden viewed as contumacious behavior on the part of applicant, and not as punishment for the commission of the offense for which applicant was accorded probation.
Because I believe that even one who is accused of being in contempt of court is entitled to receive the rudiments of due process of law, which applicant has not yet received, I would hold that because the applicant has yet to receive those rudiments of due process of law, he is entitled to relief.
In summary, because the above action of Judge McSpadden, in ordering applicant confined for 30 “straight” days in the Harris County Jail as a condition of his probation, constitutes either an abuse of judicial discretion or an unconstitutional deprivation of applicant’s rights to due process of law, I would grant the applicant relief.
Because the majority refuses to grant applicant relief, I respectfully dissent.