MATTER OF M—D--
In DEPORTATION Proceeding
A-7690775
Decid,ed`by Board February 3,1961
Conviction—Finality—Section 241- 00(4), 1952 act—Effect of probation and suspension of sentence in Texas.
(1) The Texas Adult Probation and Parole Law as amended and reenacted in
1957 (Article 781d, Texas Code of Criminal Procedure) contains no new
provisions affecting the "finality" of a conviction for purposes of the immigration laws. (Follows Matter of R—R—. 7-475-1
(2) An alien convicted of burglary in Texas in 1960 in whose case (pursuant
to the above-mentioned statute) execution of a two-year sentence was suspended and probation granted has been "convicted" within the meaning of
section 241(a) (4) of the Act.
CHARGE "
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of crime committed within five years after entry, to wit: Burglary.
BEFORE THE BOARD
DISCUSSION : This respondent, age 21, male, single, a native
Mexican citizen, appeals from an order directing deportation. Counsel, in exceptions, contends that adult probation, following a conviction, is not a final judgment under Texas law and procedure.
The only issue presented is whether the sentence and disposition of
the criminal case by the court, for the crime set forth in the order
to show cause, is a final judgment of conviction under the applicable
laws and criminal procedure of the State of Texas. The appeal is
submitted on the record.
Respondent has admitted alienage. He admits that he last entered
the United States on August 21, 1958, at El Paso, Texas, and that
ho pleaded guilty in the District Court, El Paso County, Texas, to
the charge of burglary, committed May 22, 1960, and was sentenced
to the state penitentiary for a term of 2 years on July 19, 1960. 1
Articles 1389, 139U, and 1391, Vernon's Texas Penal Code, in effect when
respondent was convicted, are statutes defining burglary, all of which provide
among other elements that the offense shall consist of entering with intent to
commit a felony, or the crime of theft. Punishment for burglary is set forth
io Article 1307 of the aforesaid code, namely, confinement in the penitentiary
not less than 2 nor more than 12 years. The crime in the instant case, committed with intent to commit theft, involves the element of moral turpitude.
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Exeenti on of the sentence was suspended and respondent was placed
on probation for a term of 2 years in accordance with the Adult
Probation and Parole Law of the State of Texas. The terms and
conditions of probation were set forth by the court:
Commit no offence against the laws of this or any other State or the United
States.
Report to his father Mr. M— as Probation Officer.
The Defendant is hereby released and paroled on his own personal recognizance in the penal sum of $2,000.00 this day taken in open court.
Deportability is challenged by counsel in exceptions (Form
I-290A) solely on the allegation that because respondent was placed
on probation under the Adult Probation and Parole Law of Texas,
the sentence, which was suspended, is not a final judgment of conviction. No precedents or points of law or procedure have been
submitted to support the allegations.
The special inquiry officer has considered counsel's exception. He
has observed that the specific procedure under which respondent
was placed on probation was amended in 1957. However, the special
inquiry officer decided that the sentence pronounced by the court
was a final judgment of conviction for the crime charged, and that
the sentence (judgment) satisfies the provision of section 241(a)
(4), the first part, Immigration and Nationality Act, so as to render
respondent deportable. As precedent, the special inquiry officer
relies on the fact that we considered and adjudicated the same
issue in a similar case arising under the statutory law and criminal
procedure in Texas jurisdiction (Matter of R—R—, 7-478 (B.I.A.,
1957) ). In substance, the only question presented is whether the
Adult Probation and Parole Law of Texas, as amended and reenacted
in 1957, affects the finality of the judgment of conviction in this case.
On May 29, 1957, when the Board rendered decision in Matter of
R—R—, supra, the Texas Adult Probation and Parole Law of 1947
was codified under Article 781b of the Texas Code of Criminal Procedure. That statute was repealed by the 55th legislative session
of 1957, effective 90 days after May 23, 1957 (Article V, section 35,
55th Leg., Chapter 226, Acts of 1957). The present Adult Probation and Parole Law was enacted by the same legislative session
in 1957. It is, in substance, similar to the former law, with modifications, and is codified as Article 781d, Code of Criminal Procedure
(Vernon's Annotated Statutes, Code of Criminal Procedure, Article 781d, 1958 Supp.). We have looked to some pertinent provisions of the new law and have compared them with certain provisions
of the former statute (Article 781b, Texas Code of Criminal Procedure), which we carefully considered in rendering our decision in
Matter of supra, to detei mine if there is any change in
probation procedure that would affect the finality of the sentence
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rendered in this case on July 19, 1960 (Pino v. Landon, 349 U.S.
901).
Comparing the provisions of the Act of 1947 (Article 781b, Texas
Code of Criminal Procedure) with current law, we note that the
state courts of Texas are given the jurisdiction to determine when
execution of sentence in certain cases (not excepted from discretion) shall be suspended, to determine the conditions of probation,
and to determine the supervision of the probationers (section 1 of
Article 781b, prior statute, which in substance is the same as sections 1 and 3 of Article 781d, Acts of 1957). The court having
jurisdiction of the case may at any time during the period of probation alter or modify the conditions that the probationer has been
given to observe (section 3 of Article 781b, prior statute, which is
in substance the same as section 6 of Article 781d, Acts of 1957).
Only the court in which a defendant was tried may grant probation, fix or alter the conditions of same, revoke the probation, or
discharge the defendant, unless the court has transferred jurisdiction to another court (section 5 of Article 781d, Acts of 1957, similar
to section 4 of Article 781b, the prior statute).
The arrest of a defendant for violation of probation, hearing for
revocation or continuance of probation, etc., is provided in section 8
of Article 781d, Acts of 1957. No part of the time the defendant
is on probation shall he considered as any part of the time that he
shall be sentenced to serve. The right of the probationer to appeal
to the Court of Criminal Appeals for a review of the trial and
conviction, as provided by law, shall be accorded at the time he
(the defendant) is placed on probation. When the defendant (after
hearing before the court) is notified that his probation is revoked
for violation of the conditions of probation, and he is called on to
serve jail or penitentiary sentence, ho may appeal the revocation
only. This section of the new law is almost precisely the same as
section 5 of Article 781b, Acts of 1947.
At the outset, it is important to note that the purpose of the
Adult Probation and Parole Act of 1957 is to provide for the release of persons on parole and to designate the Board of Pardons
and Paroles as the agency to recommend parole and to make investigations. The final purpose of the Act is to remove from existing
statutes the limitations and the questions of constitutionality that
have acted as barriers to the effective systems of probation and parole
in the public interest, (Code of Criminal Procedure, Article 181d,
section 1, Vernon's Texas Statutes, 1958 Supp.).
It is important and material to note that in deciding that the
Adult Probation and Parole Law of 1957 is not unconstitutional,
the Texas Court of Criminal Appeals has held that the 1957 Act
contains substantially the same provisions for granting and revoca-
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tion of probation and right of appeal (eon6dered important factors)
as the superseded 1947 Act; and that the 1957 enactment, in effect,
adopted construction placed on the prior statute by decisions of
that court. Stratmon v. State, 333 S.W.2d 135. In view of the
above-stated purposes of the new statute, and in view of the decision of the Texas Court of Criminal Appeals that the pertinent
provisions of the new law of 1957 are substantially the same as the
provisions of the prior Act of 1947 (Article 781b, Texas Code of
Criminal Procedure), there is very little that remains to be said
on the issue presented.
With respect to finality of a conviction for deportation purposes
(8 U.S.C. 1251(a) (4), the first part, Immigration and Nationality
Act), where such conviction (judgment) took place in Texas, and
probation occurred under the law and procedure set forth in Article 781b, Code of Criminal Procedure, we stated the general rule
in Matter of R-1?—, supra, that conviction is final when "sentence"
is pronounced on a verdict or plea of guilty; that a sentence imposed, but not executed (suspended), is nevertlielnhb a "sentence"
(judgment) ; and that if suspension of execution of sentence and
probation is subsequently revoked, no further sentence need be entered—execution of sentence must follow as if there had been no
probation. In other words, the conviction on the plea or verdict
of guilty was conipletely and finally adjudicated when the sentence
was pronounced. Accordingly, we find that probation granted to
respondent in this case under Article 781d, Texas Code of Criminal
Procedure, the Adult Probation and Parole Act of 1957, can have
no effect on the finality of conviction as long as the finding (verdict
or plea) of guilt and sentence to punishment remain of record.
Under Texas criminal procedure, suspension of execution of sentence and placement on probation by courts of that State is a matter
that rests within the sound discretion of the trial court and follows
conviction (final judgment). Ray v. State,
319 S.W.2d 705. Refusal to grant discretion is not appealable. Stratmon v. State,
333 S.W.2d 135. Since there has been no change in the new Adult
Probation and Parole Law of 1957 in Texas that affects the finality
of judgment in this case, the decision by the special inquiry officer,
predicated on Matter of 1?-4?—, supra, as precedent, is affirmed.
The appeal will be dismissed.
ORDER: It is ordered that the appeal be dismissed.
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