Untitled Texas Attorney General Opinion ( 1971 )

THE ATKBEZNEY GENERAL
OF-XAS
Honorable D. Brooks Cofer, Jr.
District Attorney Opinion No. M-882
Bras06 County
Box 3520 Re: Article 42.12, Section 3c,
Bryan, Texas 77801 Vernon's Code of Criminal
Procedure.
Dear Mr. Cofer:
Your opinion request poses the following question in
regard to Article 42.12, Vernon's Code of Criminal Proce-
dure.
"Does the defendant have the burden of
proof to establish his eligibility for pro-
bation when he has pled guilty and the jury
has been waived in the proper manner but he
has not made a written formal application
for probation?"
The applicable portions of Article 42.12 read as follows:
"Sec. 3. The judges of the courts of the
State of Texas having original jurisdiction
of criminal 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 sub-
served thereby, shall have the power, after
conviction or a plea of guilty for any crime
or offense, where the maximum punishment as-
sessed against the defendant does not exceed
ten years imprisonment, to suspend the im-
position of the sentence and may place the
defendant on probation or impose a fine ap-
plicable to the offense committed and also
place the defendant on probation as herein-
after provided. Any such person placed on
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Honorable D. Brooks Cofer, Jr., Page 2 (M-882)
probation, whether in a trial by jury or
before the court, shall be under the super-
vision of such court.
"Sec. 3a. Where there is a conviction in
any court of this State and the punishment
assessed by the jury shall not exceed ten
years, the jury may recommend probation upon
written sworn motion made therefor by the
defendant, filed before the trial begins.
When the trial is to a jury, and the defend-
ant has no counsel, the court shall inform
the defendant of his right to make such
motion, and the court shall appoint counsel
to prepare and present same, if desired by
the defendant. In no case shall probation
be recommended by the jury except when the
sworn motion and 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 any other State.
This law is not to be construed as prevent-
ing the jury from passing on the guilt of
the de~fendant, but he may enter a plea of
not guilty. In all eligible cases, pro-
bation shall be granted by the court if the
jury recommends it in their verdict.
"If probation is granted by the jury the
court may impose only those conditions which
are set forth in Section 6 hereof.
"Sec. 3b. . . .
"Sec. 3c. Nothing herein shall limit the
power of the court to grant a probation of
sentence regardless of the recommendation of
the jury or prior conviction of the defendant."
Where trial is before a jury, the defendant clearly
must make a sworn application for probation and must sus-
tain the burden of showing that he has never been convicted
of a felony before the jury can recommend a probated sen-
tence under Section 3a. Herring v. State, 440 S.W.2d 649
(Tex.Crim., 1969).
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Honorable D. Brooks Cofer, Jr., Page 3 (M-882)
No requirement for a sworn motion and proof of eligibility
for probation is found in Section 3, which authorizes the
trial judge to grant probation. Section 3c further empowers
the trial judge to grant probation regardless of the recom-
mendation of the jury or the existence of a prior conviction
of the defendant. The only requirements placed on the judge's
decision are that the sentence must not exceed ten years and
that the judge must be satisfied that the ends of justice and
the best interests of the public and the defendant will be
,served by a probated sentence. The trial court has absolute
discretion to decide whether to grant probation, and no author-
ity exists by which a defendant can require the granting of
probation. Redd v. State, 438 S.W.2d 565 (Tex.Crim., 1969);
Martin v. State, 452 S.W.2d 481 (Tex.Crim., 1970). The exer-
cise of the trial court's discretion is not appealable. Kerry
v. State, 452 S.W.?d 480 (Tex.Crim., 1970).
This office is therefore of the opinion that a defendant
whose sentence is to be determined by the trial judge is not
under a burden of proof to establish eligibility for probation,
although the trial judge may in his discretion require such proof
as he deems appropriate. Obviously a defendant may desire to
produce evidence to show that the ends of justice and the best
interests of the public, as well as himself, will be served by
a probated sentence and should have no ground for complaint if
he fails to do so and does not receive probation. At the same
time, the clear meaning of cases such as the Herring decision
is that an application for probation places no burden upon the
state to refute the defendant's eligibility for probation.
SUMMARY
The trial judge has the discretion to grant
probation when the judge is satisfied that the
ends of justice and the best interests of the
public and the defendant will be served by a
probated sentence, and the defendant is not
under a burden of proof to show eligibility
for probation when the sentence is to be
assessed by the judge, although the trial
judge in his discretion may require such
proof as he deems appropriate. Art. 42.12,
V.C.C.P.
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Honorable D. Brooks Cofer, Jr., Page 4 (M-882)
YourK very truly,
Prepared by Roland Daniel Green, III
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Larry Craddock
Sam Jones
John Banks
Fisher Tyler
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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