April   12,   1971




Hon. William B. Sullivant                  Opinion No. M-835
County Attorney
Cooke County Courthouse                    Re:   The imposition of a
Gainesville, Texas 76240                         $10.00 per month
                                                 supervisory fee on
                                                 persons who have been
                                                 granted probation as a
                                                 result of a recommenda-
Dear Mr. Sullivant:                              tlon by a jury.
     Your request for our opinion presents the following question:
          Whether or not one who is convicted of a felony
     and sentenced to a term of~probation may be required
     to pay $10.00 per month supervisory fee pursuant to
     the terms of Article 42.12, Section 6a, subdivision (a),
     Texas Code of Criminal Procedure, where the probation
     was granted as a result of a recommendation by a jury.
     A reading of the language contained in Section 6a of Article
42.1.2,Texas Code of Criminal Procedure, added by the 60th Legis-
lature in 1967, makes it apparent that this provision was added
in order to provide additional revenue which could be used to ease
the financial burden of administering the probation laws. Thus,
in the purpose of the Legislation no difference can be perceived
between the administration of probation where the probation was
exclusively within the province of the trial judge and where the
probation was granted by the trial judge as a result of the rec-
ommendation of a jury. However, some problem arises from the
l.tr;;agecontained in the last line of Section 3(a) of this Article
  . . This Section 3(a) in its entirety reads as follows:
         "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 defendant has
    no counsel, the court shall Inform the defendant
    of his right to make such motion, and the court


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Hon. Sullivant, page 2        (M-835)


    shall appoint counsel to prepare and present
    ssme, if desired by the defendant. In no case
    shall probation be recommended by the jury ex-
    cept 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 preventing the jury from
    passing on the guilt of the defendant, but he
    may enter a plea of not guilty. In all eligible
    cases, probation 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."   (emphasis added).
     The use of the term "granted by the jury" in the last sen-
tence ofthisSection 3(a')is somewhat at odds with the language
in the remainder of the article. In the remainder of the article,
the Legislature speaks of the granting of probation as being with-
in the province of the court, whereas the recommending of the term
of probation is within the province of the jury. Of course, the
next to the last sentence in the above quoted paragraph makes it
clear that the recommendation of the jury as to the granting of
probation is absolutely binding upon the Court.
     ;t is our opinion that the term, "A court granting probation
. . . in Section 6a, the portion added by the last amendment to
Article 42.12, refers to the act of the Court in entering its
judwent in either case whether probation is recommended by a jury
    on the other hand, determined to be appropriate by the trial
iu'ige.
          II. . . a 'judgment' is something more than the
     finding of the facts in the controversy, but is a
     solemn sentence of the law pronounced by the Court
     upon the facts found.
          II
             . . . From these definitions, it follows that
     no matter how clearly and decisively the entrys in
     the record may indicate what the ultimate 'judgment'
     or the sentence of the law when pronounced will be,
     until It is so pronounced, there is no 'judgment,'
     and even though the court has fully found the facts
     and stated the conclusions of law, or the jury has
     returned a complete verdict which has been accepted,
     neither of these acts will constitute a 'judgment.' "
     23 Words and Phrases, 371-372.


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Hon. Sulllvant, page 3        (M-835)

     In construing a statute in its amended form, particularly
regarding any action which takes place after the adoption of
the amendment, the statute is to be construed as though it had
been originally enacted in its amended form. Calvert v. Humble
Oil and Refining Company, 404 S.W.2d 147 (1966).
     In American Surety Co. of New York v. Axtel Co., 120 Tex.
166 36 S.W.Zd 715 (Tex.Comm.App. 1931 See also 3U S.W.2d lllO),
the Commission of Appeals had this to'say regarding the construc-
tion of an amended statute:
         II. . . A particular section of an act of the
    Legislature,-when enacted, must be construed in view
    of the existence of the original statute as it stands
    after the amendment is introduced; it and all sections
    of the old law must be regarded as a harmonious whole,
    as connected with and naturally acting upon each other.
    Shipley V. School District (Tex.Com.App.) 250 S.W. 159,
     b0; Cole v. State, lob Tex. 472, 170 S.W. 1036. 'Words
    used m the original act will be presumed to be used in
    the same sense in the amendment. An amended act is or-
    dinarily to be construed as if the original statute had
    been repealed, and a new and independent act in the a-
    mended form had been adopted in its stead; or, as fre-
    quently stated by the courts, so far as regards any
    action after the adoption of the amendment, as if the
    statute had been originally enacted in its amended form.
    The original provisions appearing in the amended act are
    to be regarded as having been the law since they were
    first enacted, and as still speaking from that time;
    while the new provisions are to be construed as enacted
    at the time the amendment took effect. It will be pre-
    sumed that the Legislature, In adopting the amendment,
    intended to make some change in the existing law, and
    therefore the courts will endeavor to give s?e effect
    to the amendment.' 36 Cyc. par. 10, p. 1165.    (at page 719).
     It is apparent then that the Legislature in adding Section
6a in 1967 Intended to make a change. To say that the change was
intended to effect only those judgments of probation in which the
probation was determined to be appropriate by the judge finds no
support in any other provisions of the statute. Applying the
above principles so as to harmonize the amendment with the remain-
der of the statute we conclude that this additional condition of
probation may be Imposed in any sentence of probation.


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    Hon. Sullivant, page 4        (M-835)

                               SUMMARY
             Pursuant to the provisions of Section 6(a),
        subdivision (a), Article 42.12, Texas Code of Crim-
        inal Procedure, a fee of $10.00 per month may be
        assessed against a person who Is granted probation
        irrespective of whether the probation is adjudged
        by the court sitting without a jury or recommended
        by a jury and then granted by the Court.
                                  Very truly yours,
                                  CRAWFORD C. MARTIN
                                  Attorney General of Texas




                                      NOLA WHITE
                                      First Assistant

    Prepared by Max P. Flusche, Jr.
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Larry Craddock
    Melv,in Corley
    Bob Lattimore
    Roland Allen
    MEADE F. GRIFFIN
    Staff Legal Assistant
    ALFRED WALKER
    Executive Assistant




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