dissenting.
The question presented is whether the jury is permitted to recommend misdemeanor probation as to one type of penalty and not as to the other under Article 42.13, V.A.C.C.P.
At the penalty stage of the trial the court correctly instructed the jury on the penalty applicable to driving while intoxicated and on the law of misdemeanor probation. The verdict form submitted to the jury and the verdict are as follows:
“We, the Jury, having heretofore found the Defendant guilty of driving and operating a motor vehicle upon a public highway while under the influence of intoxicating liquor in the County of Scurry and State of Texas, as charged in the information, now assess his punishment for said offense at confinement in the county jail for three (3) days and by a fine of $100.00 and we further find that the De*626fendant has not been under probation in the preceding five years, and we recommend to the court that the Jail Time (You inserting ‘Jail time’ OR ‘Fine’ OR ‘Jail time and fine’) assessed against the defendant in this case be probated.
/s/ Leslie O. Albin
Foreman of the Jury”
Article 42.12, Section 3a, V.A.C.C.P., as amended, dealing with felony probation, provides in part:
“. . When the jury recommends probation, it may also assess a fine applicable to the offense for which the defendant was convicted. . . . ”
No such provision is contained in Article 42.13, supra, which governs misdemeanor probation. This article provides, in part:
“Sec. 3(a) A defendant who has been found guilty of a misdemeanor wherein the maximum permissible punishment is by confinement in jail or by a fine in excess of $200.00 or by both such fine and imprisonment may be granted probation if:
“(1) he applies by written motion under oath to the court for probation before trial;
“(2) he has not been granted probation nor been under probation under this Act or any other Act in the preceding 5 years; provided that the court may grant probation regardless of the prior probation of the defendant, except for a like offense within the last 5 years; “(3) he has paid all costs of his trial and so much of any fine imposed as the court directs; and
“(4) the court believes 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 all the requirements of Section 3(a)(1), (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. .
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“Sec. 5(a) The period and terms of probation shall be determined by the court granting it. Except as provided in Subsection (d) of this section, a probationer is under the supervision of the court granting him probation.
“(b) The period and terms of probation shall be designed to prevent recidivism and promote rehabilitation of the probationer. The terms must include, but are not limited to, the requirement that a probationer:
U * * *
“(8) pay his fine, if the court so orders and, if one be assessed, in one or several sums, and make restitution in any sum that the court shall determine not to exceed One Thousand Dollars ($1,000): . . (Emphasis Supplied).
Heretofore our interpretation of these provisions in relation to the question presented in the instant case has been somewhat confusing and of little value to the trial courts. Johnson v. State, 473 S.W.2d 939 (Tex.Cr.App.1971), involved a misdemeanor conviction for driving while intoxicated. The jury in that case was instructed that they could probate either the jail time or the fine. But the court authorized them in completing the verdict form in the instructions to recommend probation for “Jail time and Fine.” After receiving the charge the jury sent the court a note in which it inquired: “If the sentence is probated is the fine also probated?” The court responded by referring them back to the charge.
The jury then assessed the punishment at six months in jail and a $300 fine and recommended that both be probated. The court probated the jail term but ordered defendant to pay the fine.
On appeal, we held that when the court accepted the verdict and acted upon it he should have followed its terms. We reasoned that the jury “should not be kept in the dark any more than our decisions now require . . . . [W]e should not add more blindfolds by instructing them with charges that the jury can grant probation for the part of the punishment assessing a *627fine when that part of their verdict will not be followed (footnote omitted).” 473 S.W.2d at 941.
We did not hold in Johnson that the trial court cannot require payment of a fine when the jury recommends probation. That case turned on the point that the court will be estopped, in effect, from failing to follow the jury recommendation of probation where they are misled by the court into believing that any fine assessed by them will be probated.
In Faugh v. State, 481 S.W.2d 412 (Tex.Cr.App.1972), the conviction was for unlawful possession of a dangerous drug. During the deliberations at the punishment stage of the trial, the jury asked the court whether defendant would have to pay a fine in a lump sum. Apparently the court did not respond. The jury then assessed the punishment at a fine of $1,250 and recommended probation. The court ordered that defendant pay $500 of the fine as a condition of probation and probated the remainder.
Defendant contended on appeal that the trial court erred in ordering that a portion of the fine be paid. In reliance on Johnson v. State, supra, we agreed and reformed the judgment to show that the entire fine was probated.
In his concurring opinion in Faugh, Presiding Judge Onion observed that the majority opinion and the opinion in Johnson had inferred, without so holding, that if the jury knew what action the court contemplated as to the requirement of the payment of all or part of the fine as a condition of probation no error would be presented. He expressed the view that where the jury has the right to recommend probation under Article 42.13, supra, such recommendation is mandatory and binding upon the trial court.
The express language of the statute is contrary to that reasoning. Article 42.13, Section 3(b), provides that a jury’s recommendation of probation is binding upon the court only if defendant has satisfied all of the requirements of Section 3(a). Among those requirements are that defendant has paid all costs of his trial and so much of any fine imposed as the court directs. Section 3(a)(3), supra. The court may order that all or part of such a fine be paid as a condition of probation. Section 5(b)(8), supra.
The statute imposes the conditions of probation set forth in Section 5(b). It follows that where the court instructs the jury of his authority to require payment of all or part of any fine as a probationary condition, they are authorized to probate the jail time but the probation is not binding on the court when proper instructions have been given. Where the court misleads the jury as to his authority in this regard, as occurred in Johnson, the jury’s recommendation of probation of the fine is binding upon the court for the reasons stated in that case. But where the court properly instructs the jury as to his authority to order payment and the jury recommends probation of the fine, such recommendation is advisory only upon the court.
Article 42.13 provides the court with no authority to order defendant to serve any of the jail time as a condition of probation. Thus, the jury’s recommendation of probation as to the jail time is always binding upon the court.
In Judge Onion’s concurring opinion in Faugh, he expressed concern that permitting the court to order payment of the fine as a condition of probation even though the jury recommended probation of the fine would violate defendant’s constitutional right to a jury trial. He reasoned that defendant is entitled to have his punishment assessed by the jury in a misdemeanor case whether the plea be “guilty” or “not guilty.”
That argument is contrary to the rule that the constitutional right to trial by jury does not encompass the right to have the jury assess punishment. Emerson v. State, 476 S.W.2d 686 (Tex.Cr.App.1972); Martin v. State, 452 S.W.2d 481 (Tex.Cr.App.1970).
When a defendant asks for probation, he seeks to come under the provisions of the statute which provide that the judge may require, upon conviction, the payment of *628the fine and costs. Where the court instructs the jury in a misdemeanor case that he has the authority to order payment of all or part of any fine assessed as a condition of probation, we should hold that the jury is authorized to probate jail time and the fine, but the recommendation as to probation of the fine is advisory only.
Taylor v. State, 549 S.W.2d 722 (Tex.Cr.App.1977), involved a misdemeanor conviction for driving while intoxicated. In Taylor, we held that the trial court erred in authorizing the jury to probate either the fine or the jail time and to exact from defendant that portion of the penalty not probated. We stated that the jury “may recommend probation or not, but if it recommends probation then the penalty assessed, whether fine, or jail time or both a fine and jail time, must be probated. . . ” 549 S.W.2d at 724.
Taylor, Oliva v. State, 500 S.W.2d 144 (Tex.Cr.App.1973); Shappley v. State, 520 S.W.2d 766 (Tex.Cr.App.1974), and Batten v. State, 549 S.W.2d 718 (Tex.Cr.App.1977), should be overruled to the extent they are contrary to Article 42.13, V.A.C.C.P.
Applying these principles to the instant case, the court’s instructions to the jury contain no reference to his authority to order payment of any fine assessed. However, the error in failing to give such an instruction was harmless under these circumstances. This Court should hold that since the jury did not recommend probation of the $100 fine, the court could have ordered it to be paid as a condition of probation in any event. See Article 42.13, Sections 3(a)(3) and 5(b)(8), supra.
The jury verdict does not always have to be followed in felony cases. Under Article 42.12, Section 3, V.A.C.C.P., if a jury denies probation, a judge may grant probation. He is not bound to follow the verdict in felony cases, and under Article 42.13, supra, he is not bound to probate the fine when the verdict is silent as to probation.
The record reflects that appellant was placed on probation on February 2, 1976, at which time he filed a written notice of appeal. The court ordered that the fine be paid on or before March 1,1976. Appellant paid his fine and costs on February 27,1976. The appeal is not moot. See Cody v. State, 548 S.W.2d 401 (Tex.Cr.App.1977).
We should follow the statutes as written and not be controlled by what individual judges are accustomed to or what each thinks the law ought to be.
No reversible error having been shown, the judgment should be affirmed.
ODOM and VOLLERS, JJ., join in this dissent.