Waggoner v. State , 161 Tex. Crim. 242 ( 1955 )

MORRISON, Presiding Judge,

dissenting.

I agree with my brethren that that portion of Article 534a, V.A.P.C., which gives the trial court the power to place the person convicted on probation is void, but I do not agree that this destroys the entire act.

When the legislature amended said article in 1953, they did so in order to render inoperative our decision in Ex parte De Jesus De La O, 154 Texas Cr. Rep. 326, 227 S.W. 2d 212. In said act they expressly repealed Article 534 V.A.P.C., insofar as it conflicted with the act they were then passing. It seems inescapable to me that the legislature intended that all prosecutions relating to adult narcotic and alcoholic addicts should be instituted in the county court under Article 534 and that all prosecutions for contributing to the delinquency of a minor should be instituted in the juvenile court under Article 534a. I think all of Article 534a should stand save the void provision for probation. This is, in effect, what we held in Gilderbloom v. State, 160 Texas Cr. Rep. 471, 272 S.W. 2d 106.

I respectfully enter my dissent.