Untitled Texas Attorney General Opinion

TBIEATTQBNEY GENERAL.
CD EXLAS
AUSTIN, TEXAS wsz#
March 30, 1966
Honorable James A. Williams Opinion No. c-643
County Attorney
Blanc0 County Re: Whether an officer, by vir-
Johnson City, Texas tue of a valid search war-
rant issued to search for
a stolen TV set, and in ad-
dition to finding the des-
cribed TV set, also finds a
typewriter which had been
reported stolen at another
time, may legally take pos-
session of the typewriter
and related questions; and
construction of Article
42.13, C.C.P., relative to
Dear Sir: the stated facts.
In an opinion request of this office you submit the
following fact situation:
,IlAl (A law officer) armed with a prop-
erly drawn search warrant describing a 19
inch portable General Electric TV, Model
0000. Searches premises, finds and takes
possession of TV. He also finds a type-
writer which had been reported stolen at
another time."
The above fact situation raises, in substance, the
following questions: 1. May the law officer legally take
possession of the typewriter? 2. Will the stolen typewriter
provide the basis for a charge of theft or a charge of re-
ceiving and concealing stolen property? 3. May the type-
writer be introduced in evidence?
In answer to Question No. 1, it is the opinion of this
office that the typewriter may be seized, If it is discovered
by the law officer during a lawful execution of a valid search
warrant. A similar question was raised in the case of Daltwas
v. State, 375 S.,W.2d732 (Tex.Crim. 1964). This case involved
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Honorable James A. Williams, page 2 (c-643)
a search warrant which was issued to search for heroin. Mari-
huana was discovered, but not heroin. The Court said "Any
contraband such as marihuana, although not specifically named
in the warrant, may be legally seized when It is observed dur-
ing a lawful execution of a valid search warrant issued for
heroin."
In the case of Burks v. State, 260 S.W. 181 (Tex.Crim.
1924), the court stated:
"A.holding that would lead to the inevi-
table conclusion that officers who went into
the house of one suspected of crime, armed
with a valid search warrant accurately des-
cribing the things they were privileged to
search for, who in the course of their search
found property undeniably stolen or weapons
admittedly used in the commission of homi-
cides or other crimes, could not produce the
articles thus found in an attempt to prosecute
the possessor of the premises or of the prop-
erty, for theft or receiving stolen property,
or murder or burglary as the case might be,
and thus deprive the government of its right
to prosecute offenders in cases of theft,
murder, etc., because forsooth the searching
officers did not go to the premises armed with
a warrant describing the particular property,
is a view that we trust will never be .enter-
tained by this court. . . .'
In answer to Question No. 2, the stolen typewriter
would provide the basis for a charge of theft or a charge of
receiving and concealing stolen property, assuming that the
State could meet its burden of proof.
In answer to Question No. 3, It is the opinion of
this office that the stolen typewriter may be used in evi-
dence, assuming that the discovery of such typewriter was
made during the lawful execution of a valid search warrant
as set out in the answer to Question No. 1.
You further request an opinion of this office con-
cerning the following:
I9,Bt Driving at an Illegal speed, fail-
ing to heed flashing caution light, collides
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Honorable James A. Williams, page 3 (C-643)
with another car and killing an occupant;
later charged with negligent homicide, 2nd
degree; comes into Court with an attorney
and enters a plea of Nolo Contendere. The
Court accepted the plea and fines him $XXXX
dollars and costs; no jail sentence. The de-
fendant properly filed his request for pro-
bation. The Court examined said request and
placed him on one year probation. Defendant
paid his fine and costs and walked out. The
docket indicates the fine, coats and proba-
tion. Later, for cause the Court has him
picked u for violating his probation (Sec-
tion 6(a ‘i .
"Section 3(a) of said Article says, when
Defendant punished by fine 'or-'confinement
In county jail, may be granted probation.
"Question: Where no jail sentence was
given or docketed, just what does a court
revoke?"
Article 42.13, 1966 Code of Criminal Procedure, pro-
vides, in part, as follows:
"Sec. 3 (a) A defendant who has .been
.
found guilty of a misdemeanor wnereln tne
maximum permissible punishment is by con-
finement in jail or by a fine in excess of
$200 may be granted probation if: . . .
"Sec. &.(a) When a defendant is granted
probation under the terms of this Act, the
finding of guilt does not become final, nor
may the court render judgment thereon, ex-
cept as provided in Section 6 of this Arti-
cle.
"(b) The oourt shall record the fact and
date that probation was granted on the docket
sheet or in the minutes of the court. The
court shall also note the period and terms
of the probation, and the details of the
judgment. The court's records may not re-
flect a final conviction, however, unless
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Honorable James A. Williams, page 4 (c-643)
probation is later revoked in accordance with
Section 6 of this Article.
. . . .
"Sec. 6. (a) If a probationer violates any
terms of his probation, the court may cause
his arrest by warrant as in other cases. The
probationer upon arrest shall be brought prompt-
ly before the court causing his arrest and the
court, upon motion of the state and after a
hearing without a jury, may continue, modify,
or revoke the probation as the evidence war-
rants.
"(b) On the date the probation is revoked,
the finding of guilty becomes final and the
court shall render judgment thereon against
the defendant. The judgment shall be enforced
as in other cases and the time served on pro-
bation may not be credited or otherwise con-
sidered for any purpose."
It is the opinion of this office that the defendant,
in the above circumstances has fully discharged the obligation
to the court at the time the fine and costs were paid. How-
ever, the terms of probation continued and the court must
formally revoke the probation of the defendant in order to
enter a final judgment of conviction.
SUMMARY
Where a valid search warrant is issued
to search for a stolen TV set,a stolen type-
writer not specifically named in the warrant
may be legally seized when it is observed
during the lawful execution of such warrant.
Assuming that the State can meet its burden
of proof, the stolen typewriter may be made
the basis for a charge of theft or receiving
and concealing stolen property. The type-
writer, being seized pursuant to a lawfully
executed search warrant, may be introduced
in evidence.
A.defendant who enters a plea of nolo
contendere, who is found guilty, who is
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Honorable James A. Williams, pag e 5 (c-643)
fined $XXXX and costs, who does not receive
a jail sentence and who pays his fine and
court costs is on probation until such time
as his probation is revoked. It is neces-
sary for the court to revoke probation be-
fore a final judgment of guilty can be
entered.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
Assistan; Attorney General
TWM/er/br
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Banks
Howard M. Fender
Charles B. Swanner
Douglas H. Chilton
APPROVED FOR THE ATTORREY GENERAL
By: T. B. Wright
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