(dissenting).
The original opinion in this matter correctly sets forth the facts relative to the suspension of sentence. It is shown therefrom that the trial court finally agreed to the suspension of sentence of the relator, who was discharged, in the following language :
“ Tf I do grant you a suspended sentence in this case would you go back home to McKinney, where you say you have lived and take care of your mother and father, who are in bad circumstances, and would you go at once if I ordered you released?’ And he said, ‘Yes, sir, that is exactly what I have in mind doing, and if released I will go home at once.’ I then turned to Mr. Blackwell and said, ‘Well, if he will do that I believe that might be a good solution of this case. If he will go back to McKinney and stay there as he promised me he will, I believe I will consider doing that.’ ”
It is the contention of the writer that that is exactly what the trial judge did under the statute which authorized the court “to suspend the imposition or the execution of sentence and may place the defendant on probation for the maximum period of the sentence imposed,” etc. (Art. 781b, Vernon’s C. C. P.).
Prior to 1935, it is the writer’s contention that the judges of the courts had no power to suspend the imposition or execution of a sentence unless such was recommended by the verdict *307of the jury. Article 776, Vernon’s C.C.P.; Jones v. State, 148 Tex. Cr. R. 374, 187 S.W. (2d) 400; Brown v. State, 156 Tex. Cr. R. 602, 245 S.W. (2d) 497.
The Suspended Sentence Law passed in 1913 provides in part as follows:
“In no case shall sentence be suspended except when the proof shall show and the jury shall find in their verdict that the defendant has never before been convicted of a felony in this or in any other State.” (Art. 776, supra.)
In 1935, the people passed an amendment to the State Constitution giving the judges of the courts of Texas the following power:
“Section 11A. The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe.”
Since the passage of Art. 781b, supra, by authority of such amendment, the district judges of Texas have been exercising that power granted them by suspending the sentence in many cases and probating the defendant as their judgment might dictate, under the present statute.
It is my contention that the relator’s sentence was suspended on condition and that he was probated as provided for by the statute, and the conditions of his probation were to the effect that he should return to his home in McKinney at once and assist in supporting his mother and father whom he said were in necessitous circumstances.
Section 3 of Article 781b, supra, provides for the conditions of the probation, among them being the following conditions:
(a) Commit no offense against the laws of this or any other State or the United States.
(b) Avoid injurious or vicious habits.
(c) Avoid persons or places of disreputable or harmful character.
(f) Work faithfully at suitable employment as far as possible.
*308(g) Remain within a specified place.
Or any other condition which the judge may see fit to impose upon him.
It is my judgment that up to the passage of Article 781b, in 1947, this article of the Constitution did not render utilizable such constitutional amendment, and no statutory enactment had been passed thereunder, but such Article 781b was passed by the 50th Legislature, Acts 1947, p. 1049, chapter 452, implementing such amendment as provided therein.
Since that time the judges have been empowered not only to grant the suspension of sentence but also to impose conditions thereunder upon the person whose sentence was thus suspended.
By virtue of our decisions thereunder, among them being Wilson v. State, 156 Tex. Cr. R. 228, 240 S.W. (2d) 774, doubtless the relator herein would have been entitled to a trial before the court alone as to whether or not he had violated any condition imposed upon him under his .suspension of sentence, and he would doubtless be entitled to such trial now before the trial court that granted his suspension of sentence and attempted to revoke the same.
I think, therefore, that the cause should be sent back, or reversed and remanded to the lower court for the purpose of giving appellant the right, if he so desires, to contest the proposition as to whether or not he had violated the conditions of probation or suspension of sentence, regardless of what it might be called.
In the opinion of the writer, this is a suspension of sentence on condition as referred to in the excerpt from 15 Amer. Jur. Vol. 15, p. 140, sec. 486, reading as follows:
“If a sentence is lawfully suspended on condition, the court may revoke it on breach of the condition imposed and sentence the accused at a subsequent term,” citing 33 L.R.A. (N.S.) 118, s. 39 L.R.A. (N.S.) 242; L.R.A. 1915C, 1172, and L.R.A. 1918C, 554; also Escoe v. Zerbst, 295 U.S. 490, 79 L.Ed. 1566, 55 S. Ct. 818.”
In 24 Corpus Juris Secundum, p. 69, sec. 1572, it is said:
“Where the right of the court to suspend sentence indefinitely *309exists, see supra, sec. 1571, and is exercised, the power remains in the court thereafter to revoke such an order and to pronounce sentence even at a subsequent term, for the reason that a suspension of sentence is not considered a final judgment by which the case is put out of court, but is a mere suspension of active proceedings in the case; but, even though such right exists, sentence cannot be pronounced after an indefinite suspension thereof if the effect would be to inflict a severer penalty than that which was permitted when the conviction was had.”
On page 183 of the same volume, under section 1618, it is said:
“In granting a suspension of execution of sentence or probation, the court may impose such reasonable terms and conditions as it may deem fit, under the circumstances of the particular case. The court should be allowed a wide, but not unlimited, discretion in imposing conditions of probation. Among the conditions that have been held legal and proper, are that the one who has been granted a suspended sentence or probation, shall leave the state or country, maintain good behavior, violate no law,” etc.
Further, on page 187 of the same volume, it is said:
“Except where, by statute, the power of terminating a probation and ordering the imprisonment of the probationer for a violation of his probation is vested in a state board, the court which ordered the suspension of sentence or probation has the power, on a violation of such order, to revoke the same and enforce the original judgment by commitment,” etc.
It is evident that my brethren have endeavored to apply the Suspended Sentence Law as it relates to a sentence that has been suspended by a verdict of the jury. Unquestionably, until the passage of Article 781b, C.C.P., under the section of the Constitution, supra, it was necessary that a person whose sentence has been suspended should be “during the good behavior of the defendant.” Section 2 of Art. 777, C.C.P., declares that “by ‘good behavior’ is meant that the defendant shall not be convicted of any felony, or any character or grade of the offenses of theft,” etc. This statute was passed, first in 1931, and again in 1941, and had application at that time only to sentences suspended by the verdict of the jury directing such.
At that time the district judge had no power except to carry *310out the mandate of the jury relative to such suspension of sentence, and a person whose sentence was suspended could only have that suspension revoked upon his failure to conduct himself properly in the observance of the “good behavior.” Thereafter, the power was also given to a district judge as above set forth under the Constitution and Article 781b, supra, to suspend a sentence of his own volition without the interposition of the verdict of a jury only in pleas of guilty before him as was provided by the statute.
The revocation of the suspension by the judge herein complained of is authorized by Article 781b, supra, and carries with it the power to revoke such suspension provided the recipient of such sentence has failed to comply with the statute and the order suspending the sentence.
Undoubtedly my brethren have confused the province of the statute relating to a jury suspended sentence with the statute relating to a sentence suspended by the judge.
The testimony herein shows that the careful and prudent judge suspended the relator’s sentence on the condition that he would perform certain duties thought to be incumbent upon him by the judge; that soon thereafter he violated these conditions and refused to abide by the condition under which his freedom had been extended to him by the trial court.
I think that the learned and conscientious judge was correct in his effort to enforce the judgment and conditions imposed upon the relator upon his plea of guilty to the offense charged. I, therefore, dissent from the views of my brethren in this matter and think that the relator should be remanded to the custody of the prison authorities.