Cox v. State

445 S.W.2d 200, 1969 Tex. Crim. App. LEXIS 994

Opinions

OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

On June 26, 1962, appellant entered a plea of guilty to the offense of forgery. His punishment was assessed at five years; the imposition of sentence was suspended, and appellant was placed on probation. The conditions of the court’s order granting probation included the following:

“(4) Report to Gib Landis 4th floor Courthouse of Potter County, Texas, who is hereby designated Probation Officer, as such officer may direct, but at least once each thirty days;

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“(9) Make restitution as and when directed by the probation officer and pay all costs of this proceeding;”

On March 22, 1963, the district attorney filed a motion to revoke probation alleging:

“1. After being granted probation on June 26, 1962, defendant was given permission on July 18, 1962, to travel to San Jose, California, where he was to make his home, and since July 24, 1962, has abscounded supervision, never having contacted his probation officer in any way.

“2. Defendant has failed to make his reports as directed by his probation officer, his last report being dated July 14, 1962.

“3. Defendant has wholly failed to pay any part of his court costs and restitution amounting to $335.20; court costs being $46.40, and restitution $288.80.”

On October 11, 1968, after a hearing, the court found that appellant had failed to comply with the conditions of probation as set forth in the motion and revoked probation.

The condition that the appellant “Make restitution as and when directed by the probation officer * * * ” is an unauthorized delegation of authority in that it permitted the probation officer to determine the terms of probation and a failure to comply cannot be used to revoke probation. The conditions of probation should be clearly set out in the probation order by the judge granting probation so that the probationer and the authorities may know with certainty what the conditions are.¹

The condition that probationer report to the probation officer at the Courthouse of Potter County as the probation officer might direct, but at least once each thirty days, was a part of the court’s order.² The proof in support of revocation on this condition shows that permission was granted and appellant moved to California in 1962; that he wrote one letter to the probation officer soon after he arrived, but never wrote or made a report after that. The motion to revoke was made and an alias capias was issued in 1963. He was not apprehended until December of 1967, and refused to waive extradition.

Appellant testified that he never made any attempt between July of 1962 and the time he was arrested to contact the probation officer and that it was his mistake.

The trial court did not abuse its discretion in revoking the probation for failure to report to the probation officer.

Appellant contends that the State had no authority, after granting permission to a probationer to leave, to revoke probation. He contends that the Uniform Act For Out-of-State Parolee Supervision, Article 42.11, Vernon’s Ann.C.C.P., required the State to transfer supervision to California.

The Act does not require a transfer of supervision when permission is granted for a probationer to leave the State. There is no showing of any attempt to transfer and no agreement by California to accept supervision. This contention is overruled.

The or.der revoking probation is affirmed.

WOODLEY, P. J., not participating.

Footnotes

1

. See McDonald v. State, Tex.Cr.App., 442 S.W.2d 386, and the cases therein cited.

2

. The record shows that a copy of the probation order was delivered to appellant.