Untitled Texas Attorney General Opinion ( 1952 )

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Hon. R. L. Whitehead Opinion No. V-1411
Criminal District Attorney
Longview, Texas Re: Allowing a person to
make bond following
Attention: Hon.'Paul Painter arrest for a violation
Assistant 'of probation .underthe
Adult Probation and
Parole Law pending
Dear Sir: final decision.
We quote from your letter asking for an opin-
ion of this office as follows:
'!Wewould like to know.~ifa person who
has been found guilty of a felony and.given.
a probated'sentence Is entitled to bond; eat
any time after he has been arrested under
the,provislonsof Sec. 5, Art. 81B, c.c.P-.,
(Adult'Probation and Parole Law1 for vlola-
tion of the terms of his probation. More
speclfically,would a person convicted of
a felony, probated under the Adult Probation
and:Parole'Law,arrested as provided by said
1aw;for violating the'terms'of sa'ld'proba-
tlon, and evidence produced for the revoca-
tion of said probation, be entitled to bond
when and while the Court took the matter un-
der advisement before.renderinghis decision?"
The Adult Probation and Parole Law, Article
781b, Vernon's Code of Criminal Procedure, Is intended
to supplement the existing procedures and facilities
for punishment and rehabilitation of persons convicted
of crime. It makes provision for persons convicted of
certain offenses to be released on probationby the Court,
under proper supervision and under conditions prescribed
by the Court. The'conditions of the probation are within
the discretion of the Court.
We quote from Article 781b as follows:
. .
Hon. R. L. Whltehead, page 2 (V-1411)
,
"Section 1. The courts of the State of
Texas having original jurisdictionof crlm-
inal actions, when it shall appear to the
satisfaction of the court that the ends of
justice and the best Interests of the public
as well as the defendant will be'subserved
thereby, shall have the power, after convic:
tlon or a plea of guilty for any crime or of-
fense except murder, rape, and offenses against
morals, decency, and chastity where thenmaxl-
mum punishment assessed the defendant does
not exceed ten (10) years Imprisonment,and
where the defendant has not been previously
convicted_ofa felony, to,suspend the imposi-
tion or the execution of sentence and may
place the defendant on probation for the max-
imum period of the sentence imposed or If no
sentence has been Imposed for the maximum .
period for which the defendant might have
been sentenced, or Impose a fine applicable
to the offense committed and also place the
defendant on probation as hereinafter provided,
Any such person placed on probation shall be
under the supervision of such court and a pro-
bation and parole officer serving such court
as hereinafter provided.
“Sec. 3. Such court shall determine the
terms .andconditions of probation and may at
any time during the period of probation alter
or modify the conditions . . .
"Sec. 4. The period of probation shall
be determined by such courts and may at any
time be modified or terminated by such courts.
. . .
.
“Sec. 5. At any time during the period
of probation such courts may Issue a warrant
for violation of any of the conditions of the
probation and cause the defendant to be arrested.
Any probation and parole officer, police offi-
cer or other officer with power of arrest may
arrest such defendantwithout a warrant upon
the request of the judge of such courts. A pro-
bationer so arrested x be detained in the
county jail or other appropriate place of de-
tention until he can be taken before the court.
- .
Hon. R. L. Whitehead, page 3 (V-1411)
Such probation and parole officer shall forth-
with report such arrest and detention to such
courts and submit in writing a report showing
in what manner the probationer has violated his
probation. Thereupon, the court shall cause
the defendant to be brought before It and; after
a hearing without a jury, s contlnue.or revoke
the probation and shall In such case proceed to
deal with the case as if there had been no pro-.-
bation. . . . When he is notified that his pro-
bation is revoked for violation of the condl-
tlons of probation and he Is called on to serve
a jail or penitentiary sentence he ma appeal
the revocation." (Emphasis supplied.3
In Wilson v. State, 240 S.W.2d 774 (Tex.,Crim.
1951)~,a case Involving the right of a convict to a jury
In a hearing on revocation of probation, the Court stated:
"When a court extends clemency under the
statute, the relationship existing is, in a
way, contractual -- that is, the court agrees
with the convict that clemency by way of pro-
bation will be extended if he will keep and :
perform certain requirements and conditions,
the violation of which will authorize the
revocation of,the probation. In this partic-
ular, there exists the similarity existing
in conditional pardons.
"The convict surrenders no right, privi-
lege, or conslderatlonfor the clemency ex-
tended. In accepting the clemency, he does
so under the conditions upon which It is ex- .
tended. Obviously, therefore, the proceeding
to revoke probation is not a trial, as that
term is used and contemplatedby the Constitu-
tion in reference to~crlminal cases, and Is not
; ;;;;;e$ing required to be conducted as such
.
Eased upon the holding of the Court in the above
case, it Is our opinion that until the time of an actual
revocation of probation by the Court the disposition of
the probationer Is entirely within the Court's sound dls-
cretlon. We agree with you that the probationer has no
absolute right to a bond, but the Court may under its au-
release authorize a bond if it SO
thority to provide the terms and conditions of the person's
desires.
i
1. I
Hon. R. L. Whitehead, page 4 (V-1411)
SUMMARY
Persons arrested for violation of proba-
tions under Article 781b, V.C.C.P., do not
have the right to make bond pending determin-
ation by the Court as to a revocation of the
probation, but the Court may, In its dlscre-
tion, permit the probationer to make bond.
APPROVED: ,. Yours very truly,
PRICE DAXIEL
Attorney General
E. Jacobson
Reviewing Assistant
BY
Charles D. Mathews Ned McDaniel
First Assistant Assistant
riMc:jmc
.