dissenting on state’s petition for discretionary review.
The majority represents that in Dillehey v. State, 815 S.W.2d 623 (Tex.Cr.App.1991), we held that the effect of promulgation of Article 44.01(j), V.A.C.C.P. was “to make deferred adjudication orders appealable and, by implication, to restrict such appeals as prescribed by [Tex.R.App.Pro.,] Rule 40(b)(1).” Slip op. at 4. It is clearly accurate to say that Dille-hey held that an order placing a defendant on deferred adjudication under current Article 42.12, § 5, V.A.C.C.P. is now appealable,1 though we had previously held it was not. See McDougal v. State, 610 S.W.2d 509 (Tex.Cr.App.1981). But if the majority is suggesting there is some “implication” in Dillehey that an appeal of an order placing the defendant on deferred adjudication is subject to the restrictions of the proviso in Rule 40(b)(1), I cannot agree. The notion, advanced by the State and uncritically accepted today by the majority, is that in light of Article 44.01(j), a prosecutorial recommendation of deferred adjudication made in exchange for a plea of guilty or nolo contendere now constitutes “punishment recommended” by the prosecutor for purposes of the proviso of Rule 40(b)(1), notwithstanding our holding to the contrary in Ex parte Hernandez, 705 S.W.2d 700 (Tex.Cr.App.1986). But Article 44.01(j) does not clearly say so, and I believe that to read that “implication” into it creates conflict with other statutory provisions governing deferred adjudication, and threatens the constitutionality of the entire deferred adjudication scheme. I dissent.
In Ex parte Hernandez, supra, we were presented with essentially the same issue we face today, viz: whether the fact that an accused obtains a recommendation of deferred adjudication in exchange for a plea of guilty or nolo contendere subjects him to the requirements of the proviso of former Article 44.02, V.A.C.C.P., now recodified in Rule 40(b)(1). The convicting court had made a recommended conclusion of law that because Hernande2; had bargained for deferred adjudication, but had not obtained the permission of the court to appeal, he had no right to appeal when his deferred adjudication probation was revoked and he was subsequently convicted. We rejected this legal conclusion. First we noted that, in the express contemplation of former Article 42.12, § 3d(b), now § 5(b), any “assessment of punishment” in deferred adjudication can occur only “[ajfter an adjudication of guilt.” Id., at 702. We held that a trial court that places an accused on deferred adjudication probation does not “assess punishment” under the terms of former Article 44.02 because the trial court has not yet “convicted” him. Moreover, the trial court does not assess punishment, consistent with Article 37.07, § 3, V.AC.C.P., until “after a finding of guilty.” Of course, an accused who has been placed on deferred adju*716dication probation has been neither convicted nor found guilty. Accordingly, we concluded:
“Article 44.02 contemplates an appeal after assessment of punishment and ‘sentencing.’ The proviso bars a defendant from prosecuting an appeal ‘who has been convicted [upon plea of guilty or nolo con-tendere before the court] and the court assesses ‘punishment [that] does not exceed [what is] recommended by the prosecutor and agreed to by the defendant and his attorney1 — except as provided. Since an order conforming with plea bargain for deferred adjudication is not an appealable order and does not assess punishment within the meaning of Article 37.07, § 3(a) and (d), and within contemplation of Article 44.02, it follows that a defendant is not precluded from prosecuting an appeal after adjudication of guilt, judgment and sentencing merely because he initially bargained for deferred adjudication....”
Id., at 703 (emphasis supplied in Hernandez). For all these reasons we determined that placing an accused on deferred adjudication probation does not constitute “punishing” him, and his having bargained for that disposition does not later subject him, upon revocation of deferred adjudication probation and subsequent conviction, to the limitations on appeal contained in the proviso to former Article 44.02.
The State argues that two subsequent events have combined to make our conclusion in Hernandez obsolete. First, of course, our opinion in Dillehey ruled that an accused may appeal an order placing him on deferred adjudication. Therefore, to the extent that the rationale in Hernandez is grounded upon the fact that “an order conforming with plea bargain for deferred adjudication is not an appealable order[,]” it is no longer viable.
Second, and more to the point, the State argues that with the promulgation of Article 44.01(j), we cannot fairly adhere to our conclusion that deferred adjudication probation is not “punishment.” After all, Article 44.01(j) expressly permits an appeal “where the punishment assessed is in accordance with” the deferred adjudication provisions of Article 42.12.2 The suggestion is that the Legislature now considers an order placing an accused on deferred adjudication probation to comprise an “assessment of punishment,” and that any appeal from that order should therefore be subject to the strictures of the Rule 40(b)(1) proviso if it was bargained for. That the Legislature regards deferred adjudication probation as a species of “punishment” is underscored, the State maintains, by the fact that in 1993 it amended Article 42.12, § 5(a) so that it now expressly permits, contrary to prior decisional law, see Ex parte Shillings, 641 S.W.2d 538 (Tex.Cr.App.1982), the assessment of a term of confinement as a condition of deferred adjudication probation. Acts 1993, 73rd Leg., ch. 900, § 4.01, p. 3719, cff. Sept. 1, 1993.
Neither of these events convinces me that we should abandon the holding of Hernandez. It is true that after Dillehey an order of deferred adjudication probation is now itself appealable. This only means that the question now arises whether the proviso in Rule 40(b)(1) will apply to such an interlocutory appeal. But it does not answer that question either way,3 much less does it resolve the related question whether an appeal following revocation of deferred adjudication probation and entry of a judgment of conviction is also subject to the Rule 40(b)(1) proviso. Only if the State is correct in its asser*717tion that deferred adjudication probation now constitutes “punishment assessed” can we conclude that the proviso applies, and to that issue I accordingly turn.
True enough, Article 44.01(j) now grants the accused the right to immediately prosecute an appeal “where the punishment assessed is in accordance with” the provision of Article 42.12 that authorizes deferred adjudication probation. But I regard this as no more than an unfortunate and misleading conveyance of the relatively simple notion that an accused may take an interlocutory appeal from an order placing him on deferred adjudication probation, notwithstanding the fact that he has not actually suffered a judgment of conviction against him, and hence has not had any “punishment assessed.” See Dillehey, supra, at 624-25. I cannot imagine the Legislature meant somehow to abrogate other bedrock provisions of the Code of Criminal Procedure, invoked in Ex parte Hernandez, supra, that clearly indicate “punishment” is not imposed under any circumstances until “after a finding of guilty[,]” Article 37.07, §§ 2(b) & 3, supra, and, specifically in the context of deferred adjudication, until “[ajfter an adjudication of guilt[,]” Article 42.12, § 5(b), supra. We should not construe the Legislature’s error in describing deferred adjudication as “punishment assessed” in Article 44.01(j) to undo the import of the overall statutory scheme in one fell swoop.
Moreover, if we regard deferred adjudication probation to be a form of “punishment,” we call into question the constitutionality of the entire deferred adjudication scheme. After all, it has been called “axiomatic” that to punish an accused before a formal adjudication of guilt violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Ex parte Green, 688 S.W.2d 555 (Tex.Cr.App.1985), quoting Schall v. Martin, 467 U.S. 253, 269, 104 S.Ct. 2403, 2412, 81 L.Ed.2d 207, 220 (1984), which relied in turn upon Bell v. Wolfish, 441 U.S. 520, 535, n. 16, 99 S.Ct. 1861, 1872, n. 16, 60 L.Ed.2d 447, 466, n. 16 (1979). I have no doubt we would hold it also violates due course of law under Article I, § 19 of the Texas Constitution. To the extent that the 1993 amendment to Article 42.12, § 5(a), now allowing confinement as a condition of deferred adjudication probation, was specifically meant to render it “punitive,” it suffers the same constitutional deficiencies.
The Court prefers to glean a legislative intent from the unfortunate choice of language in Article 44.01(j) that is seriously, and in all likelihood, fatally, at odds with an otherwise integral, and historically functional, scheme for implementing deferred adjudication in Texas. Rather than risk such disruption in the law, I would adhere to our opinion in Hernandez, and continue to hold that an appeal from a conviction following revocation of deferred adjudication probation is not subject to the proviso in Rule 40(b)(1), leastwise not on account of the fact that the deferred adjudication probation itself was the product of a plea bargain. Because the Court insists on holding otherwise, I dissent.
BAIRD and MALONEY, JJ., join.. Of course, strictly speaking, it is not the order itself placing an accused on deferred adjudication probation that is appealable under Article 44.01(j), but rulings on some “legitimate pretrial issue where ... the court has ruled on the admissibility of some evidence or some other matter that either or both parties feels may have been dispositive of the case[J" Dillehey v. State, supra, at 625, quoting Senator Washington on the Senate Floor advocating adoption of an amendment to Senate Bill 762 that ultimately became Article 44.01(j). What Article 44.01(j) essentially provides is an interlocutory appeal of such matters upon the entry of an order placing the accused on deferred adjudication probation.
. All emphasis supplied unless otherwise indicated.
. I am inclined to think an appeal from an order imposing deferred adjudication probation is not subject to the Rule 40(b)(1) proviso, at least on the basis of the language of the proviso itself. The rule states that notice of appeal shall be sufficient if it demonstrates the accused’s desire to appeal from "the judgment or other appealable order." By contrast, the proviso begins: "but if the judgment was rendered...." Naturally, when an accused takes his (essentially interlocutory) appeal from an order imposing deferred adjudication probation pursuant to Article 44.01(j), there is only an “appealable order," not a judgment. Because on its face the proviso does not embrace a mere “appealable order,” I presume the notice of appeal requirements contained therein do not apply to any "appealable order” less than a full-blown judgment. This is true whether or not the Legislature considers deferred adjudication probation to be “punishment assessed.”