Texas Stamp

SHORTT, BERNARD WINFIELD

PD-0597-15 09/16/2015

"The Court of Appeals erred when it dismissed Appellant's appeal for want of jurisdiction because: (1) Texas Code of Criminal Procedure Article 44.02 allows appeals from a criminal action, and under this Court's holding in Bautsch v. Galveston, 11 S.W. 414 (Tex. Ct. App. 1889), a hearing on a motion for shock probation is a criminal action; and (2) the issue appealed was an unconstitutional imposition of restitution, and not the granting of shock probation itself."

Shortt appealed the assessment of restitution included in the judgment granting him shock probation. The court of appeals dismissed for want of jurisdiction, holding that there is no statutory authority that authorizes an appeal from an order granting shock probation. Shortt argues that, even though Tex. Code Crim. Proc. art. 42.12 ยง 6 does not authorize an appeal, he has the right to appeal under Tex. Code Crim. Proc. art. 44.02, which permits an appeal from a "criminal action." Bautsch v. State, 11 S.W. 414 (Tex. Ct. App. 1889), stated that a "criminal action" is prosecuted by the State by an office acting under the authority of the State. The hearing on the motion to grant shock probation constitutes a "criminal action."

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