Untitled Texas Attorney General Opinion ( 1970 )

Hon. Edgar A. Wallace Opinion IJo.M-639 County Attorney of Kerr County, Texas RE: !,2ay a defendant who Chas. Schreiner Dank Dldg. pleads guilty to a mis- Xerrville, Texas 70028 demeanor charge, and who received a probated sen- tence within the immedi- ately preceding five years, receive a probated sen- .." tence for the pre~sent Dear Hr. Wallace: offense? This is in response to your inquiry requesting the opinion of this office as to whether a County Judge may grant misdemeanor probation to a defendant who has re- ceived probation durinq the five year period immediately preceding his current convictian. Apparently the confusion arises from the change in, Article 42.13, Section.3, Texas Code of Criminal Procedure as was amended in 1967. Prior to the 1967 amendment, the Code of Criminal Procedure stated, inter alia, that eligibility formis- demeanor probationBhoul= based upon [Section 3(a) (2)I: "(2) he has .neverbefore been con- victed in th~isor another ~jurisdiction of a felony or of a misdemeanor for which the maximum permissible punish- ment is be confinement in jail or ex- ceeds a $200 fine" and Section 3(a) (3): "(3) he has not been granted pro- bation nor been under probation under this Act or any other Act in the pre- ceding five years;" (Emphasis added.) -3056- Hon. Edgar A. Wallace, page 2, (U-639 ) The 1967 amendment eliminated Section 3(a) (2) above but reincorporated Section 3(a) (3) above as Section 3(a) (2) of the amended Act. Section 3(b) of the amended Act contains the new provision: " * * * The Court may grant the defendant probation regardless of the recommendation of the jury or the prior conviction of th defen- dant, * a *I (Emphasis addeed. Dut, broththe original and the amended Act require under Section 3(c) that the defendant's application must show whether he has any';xior convictions and musf affirmatively show that he has n~0tboprabation een in the preceding five years. From the standpoint of statutory construction we must assume that the Legislature had a purpose in leaving the required disclosure of prior convictions in Section 3(c), even though such prior convictions in and of themselves are no longer a bar to probation. The evident purpose of such information is to enable the Judge to effectively exercise his discretion in granting or withholding probation with such pertinent facts before him. The fact that the Legislature upecifically retained as a condition of granting probation that the defendant has not been granted probation nor heen under probation durina the nrecedina five vears clearlv shows that it was the legislakive int&t thag a person nbt be eligible for misdemeanor probation for five years after he has completed a prior probationary period. It is therefore the opinion:of this office that the County Judge is not authorized to grant misdemeanor probation to a person who has received any type of probation until five years have expired after the completion of such prior probationary term. -3057- Hon. Edgar A. rlallace,page 3, (M-639 ) The County Judge is not authorized to grant misdemeanor probation to a person who has received any type of probation until five years have expired after the completion of such prior pro- bationary term. ruly yours, Prepared by Howard :~I. Fender Assistant Attorney General APPROVED8 07?1171017 COlUlITTCE Kerns Taylor, Chairman !!.E. Allen, Co-Chairman Charles Parrett Jo Betsy Lewallen Lonnie Zwiener Sam Jones NEADE F. GRIFFIN Staff Legal Assistant ALFRED V7ALI:ER Executive Assistant IlOLAVIIIITE First Assistant Attorney General -3058-