Untitled Texas Attorney General Opinion ( 1967 )

THE ATJXBECNEY GENERAL
OPTEXAS
February 1, 1967
Honorable John C. Mullen Opinion No. M-19
County Attorney
Jim Wells County Re: Whether a person who has been
Alice, Texas convicted of a felony, wherein
the sentence was suspended, and
the judgment of conviction has
not been set aside and the cause
dismissed under the provisions
of Article 780 of the old Code
of Criminal Procedure, is bar-
red from applying for and re-
ceiving probation under the
Misdemeanor Probation Law.
Dear Mr. Mullen: Article 42.13, V.C.C.P.
You have requested this office for an opinion on the
hereinabove set out question.
Article 42.13, Vernon's Code of Criminal Procedure,
known as the Misdemeanor Probation Law, provides, among
other conditions, in Section 3(a)(2) thereof, that a de-
fendant who has been found guilty of a misdemeanor wherein
the maximum oermissible punishment is by confinement in jail
or by a fine in excess of $200, may be 'grantedprobation if:
"He has never before been convicted in this or another jur-
isdiction of a felony or of a misdemeanor for which the maxi-
mum permissible punishment is by confinement in jail or ex-
ceeds a $200 fine."
It has been held that the expression "conviction of
a felony", as used in the suspended sentence law, means that
status resulting from a judgment based on a verdict finding
the accused guilty, and hence includes a conviction where
sentence has been suspended. Hill v. State, 243 S.W. 982
fTex.Crim. 1922); Bradshaw v. State, 81 S g.2d 83 (Tex.Crim.
i935); Edwards State, llo s w 26 711 (Tex.Crim. 1938).
Whitlock v. Sta,
eS.W.2d l&'(Te~,f.?;~m.1933); Thompion
V.
-m'?A R¶Q (IT*."AYu.
/WC..,
.W.LU "J.7.
State, 244 L?' Ir,im d.2>=,.
Therefore, in view of the above authorities and under
the facts stated, it is the opinion of this office that a
person who has been convicted of a felony wherein the sen-
tence was suspended is barred thereby from applying for and
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Honorable John C. Mullen, Page 2 (M-19)
receivin probation under the Misdemeanor Probation Law.
Article $2.13, V.C.C.P.
SUMMARY
A person who has been convicted of a
felony, wherein the sentence was sus-
pended, and the judgment of conviction
has not been set aside and the cause
dismissed under the provisions of Ar-
ticle 780 of the old Code of Criminal
Procedure, is barred from applying for
and receiving probation under the Mis-
demeanor Probation Law. Article 42.13,
V.C.C.P.
Y*s very truly,
WAt rney General of Texas
RLL/dt
Prepared by R. L. Lattimore
Assistant Attorney General
APPROVED:
OPINION COMMITTEE:
Hawthorne Phillips, Chairman
W. V. Geppert, Co-chairman
Sam Kelley
John Banks
Bill Craig
David Longoria
A. J. Carubbi, Jr.
Staff Legal Assistant
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