OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of felony driving while intoxicated, and the trial court assessed punishment at two years confinement in the county jail, probated for eight years. Tex. Rev.Civ.Stat.Ann. art. 6701l-1(e)(2) (Vernon Supp.1992). The Eighth District Court of Appeals affirmed. Chauncey v. State 837 S.W.2d 179 (Tex.App.—El Paso 1992). We granted appellant's petition for discretionary review to determine (1) whether dual jail and restitution center terms are invalid conditions of probation under article 42.12 § 18(a) of the Code of Criminal Procedure, and (2) whether the length of the probationary term imposed may exceed the maximum imprisonment term allowable for the offense under article 42.12 § 3 of the Code of Criminal Procedure.
As conditions of his probation, appellant was to serve 180 days in jail followed by three to twelve months in a restitution center. On appeal, appellant complained that the express language of article 42.12 § 18(a) of the Code of Criminal Procedure prevents the imposition of both time in jail and a restitution center term as conditions of probation. The Court of Appeals disagreed, reasoning that in order to further the Legislature's purpose of granting broad authority to trial courts in setting conditions of probation, a trial court may impose as conditions of probation, both a prison term and time in a restitution center.
Before this Court appellant argues that jail and restitution center terms are mutually exclusive conditions of probation pursuant to article 42.12, § 18(a)
At the time of appellant's conviction, article 42.12 § 18(a) provided, in pertinent part:
Tex.Code Crim.Proc.Ann. art. 42.12 § 18(a) (Vernon Supp.1992) (emphasis added). This section applies when "probation [is awarded] as an alternative to imprisonment".
Both parties and the Court of Appeals have failed to make the distinction between a sentence of imprisonment and imprisonment that is imposed as a condition of probation. They have viewed the term "imprisonment" as utilized in section 18(a) as referring to any imprisonment, even imprisonment imposed as a condition of probation rather than as a sentence. This is contrary to a plain reading of the provision. It makes no sense to read section 18(a) as applicable when a defendant is placed on probation as an alternative to imprisonment which is imposed as a condition of probation.
Appellant also complained on appeal of the length of his probationary period, arguing that article 42.12 § 3 prohibits the fixing of a term of probation that exceeds the statutory
In his petition before this Court,
At the time of appellant's conviction, article 42.12 § 3 provided, in pertinent part:
Tex.Code Crim.Proc.Ann. art. 42.12 § 3 (Vernon Supp.1992). We see nothing in the plain language of section 3 which limits the trial court, in assessing the term of probation, to a term that does not exceed the maximum sentence of imprisonment statutorily allowable for the offense. The only limitation appearing in section 3 is that the term of probation shall not "be greater than 10 years or less than the minimum prescribed for the offense for which the defendant was convicted." Had the legislature intended to otherwise limit the term that might be assessed, it could have so provided.
The judgment of the Court of Appeals is affirmed.
BAIRD, Judge, dissenting.
Believing our holding in Jaynes v. State, 673 S.W.2d 198 (Tex.Cr.App.1984), correctly interpreted Tex.Code Crim.Proc.Ann. art. 42.12, § 3 as limiting the length of the probationary term to the maximum term of confinement prescribed by law, I dissent to Part II of the majority opinion.
At the time of appellant's trial, Tex.Code Crim.Proc.Ann. art. 42.12, § 3(a) provided in pertinent part:
Generally, the application of art. 42.12, § 3 is not problematic because, for the vast majority of felonies, the maximum length of probation falls within the punishment range of all three classes of felonies.
We addressed this problematic area in Jaynes, 673 S.W.2d 198. Following Jaynes' conviction for failure to stop and render aid, Tex.Rev.Civ.Stat.Ann. art. 6701d, §§ 38 and 40, the trial judge assessed punishment at eight years confinement, probated for a period of eight years. On appeal, Jaynes contended the trial judge erred in assessing probation in excess of the maximum term of confinement for the offense, five years. Eight judges of this Court agreed, holding:
Id., 673 S.W.2d at 202 (citing Pedraza v. State, 562 S.W.2d 259 (Tex.Cr.App.1978)).
In the instant case, appellant was convicted of the felony offense of driving while intoxicated and was sentenced to two years confinement, probated for eight years. Tex. Rev.Civ.Stat.Ann. art. 6701l-1(e). However, art. 6701l-1(e)(2) provides for a maximum term of confinement of five years. Therefore, consistent with our holding in Jaynes, appellant's term of probation may not exceed five years. Jaynes, 673 S.W.2d at 202.
The majority's re-interpretation of art. 42.12, § 3 is in direct conflict with our decision in Jaynes, 673 S.W.2d 198. The doctrine of stare decisis commands that we follow settled questions of law in the absence of compelling
With these comments, I respectfully dissent.
In support of his argument that his sentence constituted cruel and unusual punishment under the eighth amendment to the United States Constitution, appellant asserted that there had never been a sentence imposing dual prison and restitution center terms as a condition of probation for a DWI conviction. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (standing for the proposition that a critical factor in determining whether a sentence is cruel and unusual punishment is whether such a sentence has been imposed in the same or other jurisdictions). However, this is only one factor in deeming punishment cruel and unusual, and we do not believe that a Constitutional violation was shown in this case.
Id. (emphasis added). This conclusion was based upon our opinion in Pedraza v. State, 562 S.W.2d 259 (Tex.Crim.App.1978), where we had stated that the term of probation for a misdemeanor was limited to the maximum term of confinement allowable for the offense. In Jaynes, we applied "the same reasoning to felony probations." Jaynes, 673 S.W.2d at 202. However, we think this reasoning was flawed. Jaynes failed to recognize that in Pedraza, the provision applicable to assessing the term of misdemeanor probation expressly provided that the probationary term assessed could not be "in excess of the maximum term of confinement." Pedraza, 562 S.W.2d at 259 (referring to article 42.13, Sec. 3(b) of the Code of Criminal Procedure, which provided at the time that in assessing misdemeanor probation the court may "extend the term of the probationary period to any length of time not exceeding the maximum time of confinement allowed by law"). Accordingly, we disavow our statement in Jaynes that section 3 "does not allow the imposition of a probationary term in excess of the maximum term of confinement allowable for the offense" and to the extent necessary overrule it. We note that, apart from the section 3 issue, Jaynes was properly reversed on the ground that the court assessed a term of confinement (eight years) that exceeded the maximum allowable for the offense (five years). See Jaynes, 673 S.W.2d at 203 (Clinton, J., concurring) (Court need not have reached issue of probationary term because case properly remanded on other grounds).