W. J. Mcnew v. State Texas

On rehearing the appellant again urges his contention that Article 42.12, ? 3d, V.A.C.C.P., permitting deferred adjudication, is unconstitutional. He complains that the opinion on original submission held that deferred adjudication was not the type of probation permitted by Article IV, ? 11-A of the Texas Constitution, but did not then explain how deferred adjudication was legal since it was not included within "probation" as authorized by said Article IV, ? 11-A. He argues that the probation permitted by Article IV, ? 11-A, is only "after conviction," and that deferred adjudication permits probation before conviction and thus the courts have not been authorized to grant such clemency and the Legislature had no constitutional basis for authorizing deferred adjudication. Appellant contends that to simply say that deferred adjudication is not the same type of probation as that authorized by Article IV, ? 11-A of the Constitution and Article 42.12, V.A.C.C.P., and therefore there is no violation of the Constitution does not answer the question. We agree that another examination is in order.