Untitled Texas Attorney General Opinion

Hon. J. M. Kolander Opinion No. S-63 County Attorney Potter County Re: Applicability of the Adult Amarillo, Texas Probatlon'and Parole Law to probations under the 1953 amendment to the Mlsde- Dear Sir: meanor DWI Law. You have requested an opinion on the construc- tion of Article 802, Vernon's Penal Code,,as amended by Chapter 167, Acts of the 53rd Legislature,,l953, page 480. Your questions arenas follows: "1. What type of probation is contem- plated by the statute? "2.'Can the probationary period be for a longer term than the maximum jail term set by the statute.?" particle 802 as amended;provldes: ."Any person who drives or operates an automobilesor any other motor vehicle 'upon any public road or'highway in this State, or upon any street or alley within the.limits of an Incorporated city, town or village, while such person is intoxicated or under~ the Influence of intox+atlng liquor, shall be guilty of a misdemeanor and upon convic- tion shall be punished by confinement In the county jail for not less than three (3) days nor more'than two (2) years, and by a fine of not less than Fifty 50.05j3ollars nor more than Five Hundred 8 500.00) Dollars. ! Provided, however, that the presiding judge In such cases at,his discretion may commute

Hon. J. M. Kolander, Page 2 (S-63)

said jail sentence to a prabation period of not less than six (6)~months." (Emphasis added.) Article 802 was amended by the 53rd Legisla- ture by inserting the underlined word "and" in lieu of the word 'or' and by adding to its provisions the under- scored words. Therefore,,Article 802 was amended by making a mandatory jail sentence and authorizing the presiding judge.in such case to commute said jail sentence to a probation period of not less than six (6) months. Prior to the amendment in 1953, the county court did not have authority to place persons convicted in such courts under probation. Ex Parte Hayden, 215 S.W.2d 602 (Tex.Crim. 1948): Attorney General's Opinion v-415 (1947)‘. Under the.1953 amendment, county courts now have specific authority to place persons convicted in such courts for violation of the provisions of Article 802 oq probation. Probation, as it is hewn and applied in this State, Is well defined in the Adult Probationand. Parole Law. Article 78lb,.Vernon's Code Criminal Procedure. In answer to your second question, it Is notes that the probation shall be not less than six months. It maynot extend longer than the maximum jail term assessed.under Article 802 of Vernon's Penal Code., Ex Parte Davis, 253 S.W.2d 664 (Tex.Crim. 19 2); Ex Par-i% Fernandez, 241 S.W.2d 155 (Tex.Crlm. 19515 . .

SUMMARY

A ~defendantconvicted under the mlsde- meanor D.W.I. Law may‘be placed on probation 'for not less than six (6) months nor for a longer period than the maximum jail term assessed under Article 802, Vernon's Penal

Honk.J. M.~Kolander, Pa8 e 3 (S-63)

Code. The type of probation is the same as that defined in the Adult Probation and Parole Law. Yours very truly, APPROVED: JOHN BEN SHEPPERD Attorney General J. C. Davis, Jr. County Affairs Division Willis E. Gresham Reviewer Assistant Burnell Waldrep Executive Assistant I

John Ben Sheppard Attorney General JR:am

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Probation for DWI

The Coast Of Criminal Appeals has just held in Gilderbloom v. Texas that a defendant conricted under the misdemeanor DWI law could not constitutioo- 3&. be placed on probation.

This offke had previously held in Opinion S-63 that the Legislature intendad to authorizzprobation in such cases, but this opinion did not pass on .& c-titdiandi~d the article in question. (Article 802, V.P.C.).

.Tka. *effect of our Opinion S-63 has been overruled by the Court’s j&i- m~patitnt. part of their ruling reads:

-we hdithat the proviso which authorizes commutation of the +I sstacr iarmconstitutional and inoperative, but that the remainder of-A&k&d.”