Untitled Texas Attorney General Opinion ( 1976 )

The Honorable Wiley L. Cheatham Opinion No. Ii-806
District Attorney
24th Judicial District Re: Judgment and pro-
Cuero, Texas 77954 bation order specifying
indeterminate term of
punishment.
Dear Mr. Cheatham:
You ask:
(1) In reciting and setting out the
punishment in an order placing an accused
on probation under C.C.P. art. 42.12, for
a felony conviction,. . . should the wording
provide an indeterminate sentence. . .as
required and provided in C.C.P. art. 42.09
or should a definite punishment for a
specific number of years be recited in the
order?
(2) When the wording which sets out the
punishment is incorrect, what is the legal
effect and what procedure should be used
to correct [it] s . . ?
The distinction between a judgment ahd a sentence must
be kept in mind. See Code Crim. Proc. arts. 42.01, 42.02.
7
Without a judgment, sentence is unauthorized. Morgan v.
State, 515 S.W.2d 279 (Tex. Crim. App. 1974); Scott 2 -
State, 461 S.W.2d 619 (Tex. Crim. App. 1971); 5 Tex. Jur.Zd,
Appeal and Error -- Criminal Cases 9 119. The indeterminate
sentence law, however, has no application to a judgment.
Can0
-- v. State, 450 S.W.2d 646 (Tex. Crim. App. 1979).
p, 3401
*, -3
The Honorable Wiley L. Cheatham - page 2 (H-806)
You have furnished two samples of completed instruments,
each purporting to embody both the judgment of the court in
a felony case and the order of probation. The first of the
judgments correctly assesses a definite term of punishment
(10 years) and orders probation for a specific period (10
years) during which the imposition of sentence is suspended.
The second instrument incorrectly recites the assessed
punishment as "not more than eight (8) years, nor less than
two (2) years," but recites a specific period (8 years)
during which the imposition of sentence is to be suspended.
The indeterminate sentence statute, article 42.09, Code
of Criminal Procedure, provides that in "passing sentence"
where a verdict has fixed the punishment at confinement in
the penetentiary for more than a minimum term, the judge
"shall pronounce an indeterminate sentence. . . ." But
this stage is not reached, if probation is granted, because
the power to grant probation in a felony case is now exer-
cised by suspending "the imposition [not the execution] of
the sentence. . . ." Code Crim. Proc. art. 42.12, S9 3, 7,
8. See Special Commentary by Honorable John F. Onion, Jr.,
following Code Crim. Proc., art. 42.12.
The term "probation" means "the release of a convicted
defendant by a court under conditions imposed by the court
for a specified period during which the rmposltion of sen-
tence is suspended." Code Cram. Proc. art. 42.12, 5 2(b).
Thus, in answer to your first question, the judgment
should reflect a punishment fixed at a definite number of
years, and the order of probation should reflect a proba-
tionary period for a definite period of time (which now may
be different from the number of years fixed as punishment by
the judgment), but neither the definite term of punishment
recited by the judgment or the definite probationary period
specified by the order of probation prevents the court from
later pronouncing an indeterminate sentence in accordance
with article 42-09 at the time the probation is concluded.
NO sentence can be "passed" or "imposed" until that time.
See Burson v. State,-511 S.W.2d 948 (Tex. Crim. App. 1974);
Fly v. State, S.W.2d 122 (Tex. Cram. App. 1973); Code
Cram. Proc. art. 42.04.
P. 3402
The Honorable Wiley L. Cheatham - page 3 '(H-806)
Both instruments you submitted were entered by the
court prior to September 1, 1975, the date upon which 1975
amendments to article 42.12 of the Code of Criminal Procedure
became effective. Inspection of Court of Criminal Appeals
records reveals that the judgment and order of probation in
Can0 v. State, supra, is essentially identical to the furnished
instrument incorrectly reciting an indefinite term of adjudged
punishment. In a footnote to its opinion, the court noted
an improper attempt to apply the indeterminate sentence law.
The Cano Court interpreted the "indeterminate sentence"
language ofhe judgment there ["not less than two (2)
years, nor more than five (5) years"] as assessing a definite
five year term, which coincided with the specific period of
probation (5 years) recited by the order of probation por-
tion of the instrument. We have no reason to believe the
Court of Criminal Appeals would adopt a different posture
with respect to the instrument you have submitted to us, and
the answer to your second question is that the legal effect of
that instrument is the same as though an assessed punishment
of eight years were definitely set out in the judgment, and
nothing need be done to correct the judgment language.
You have not asked about'instruments entered after the
1975 amendments to article 42.12, Code of Criminal Procedure,
took effect, nor about the effect of "indeterminate sentence"
language used to designate the period of probation, and we
do not reach those matters.
SUMMARY
Where probation is utilized under article
42.12, Code of Criminal Procedure, the
judgment in a felony case should reflect
a punishment fixed at a definite number
of years and an order of probation
should reflect a probationary period for
a definite period of time.
P. 3403
The Honorable Wiley L. Cheatham - page 4 (H-806)
jwb
p. 3404