concurring.
The interpretation of “negotiated pleas of guilty” as used in the Dallas County Magistrates Act (“Act”), Article 1918c, V.A.C.S., applied by the Court in this cause and in Howard v. State, 690 S.W.2d 252 (Tex.Cr.App. delivered this day) seems still somewhat ambiguous and may need finer clarification — if not today, maybe tomorrow.1
Having made that observation, I would not write further but for the fact that the State interjected and the Dallas Court of Appeals alluded to Article 44.02, V.A.C.C.P. Scott v. State, 668 S.W.2d 430, 431-432 (Tex.App.—Dallas 1984), viz:
“It is true that the magistrate statute does not contain that requirement contained in section [sic] 44.02. It does, however, contain the phrase ‘negotiated plea’ and we have already held that implicit in the phrase ‘negotiated plea’ is the notion that some agreement as to punishment has been reached.” Id., at 432.
In an abundance of caution, I would point out that henceforth “negotiated plea,” as used in the Act and construed by this Court today, and “plea bargain agreement” within the meaning of Article 44.02, supra, are not synonymous, and should not be used interchangeably.
Article 44.02, supra, does not contain the term “negotiated plea” — nor for that matter “plea bargain agreement.” The pertinent language is “the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney.” It is Article 26.13(a)(2), V.A.C.C.P., which requires the judge to inquire as to “any plea bargain agreements,” and in that paragraph (2) there is no reference whatsoever to punishment; however, paragraph (3) contains practically the same language quoted above from Article 44.02. Thus it is reasonable to conclude that both Article 26.-13(a)(3) and 44.02 contemplate a plea bargain agreement in which a consideration is what specific terms of punishment the prosecution will recommend to the court.
*260Therefore, whatever other considerations are exchanged in an agreement that leads to a “negotiated plea,” if the parties do not mutually agree on specific terms of punishment to be recommended by the prosecutor there is no “plea bargain agreement” within the contemplation of Article 44.02.
With my observation and caution, I join the opinion of the Court.
. Quaere: If "negotiated plea” means only "a plea of guilty entered pursuant to a plea bargain” without agreed punishment as a consideration (P. 255), does the Act authorize a judge to refer to a magistrate a proceeding involving a negotiated plea of guilty flowing from a plea bargain agreement that includes a mutual understanding and agreement as to specific terms of punishment to be recommended by the prosecutor? Since neither in this cause nor Howard is there such a plea bargain agreement, the Court may be simply deferring the question.