" The appellant then argues and urges a negative answer to that question. As authority, the appellant cites the dissenting opinion in Custard v. State, 746 S.W.2d 4 (Tex.App. — Dallas 1987, pet. ref'd). The dissenting opinion was handed down by a member of the original panel.

The trial court did not abuse its discretion. See Simpson, 772 S.W.2d at 278; Custard v. State, 746 S.W.2d 4, 7 (Tex.App. — Dallas 1987, pet. ref'd). Appellant also attacks the trial court's decision to place him on maximum supervision probation.

This argument has been considered and rejected. Simpson v. State, 772 S.W.2d 276, 278 (Tex.App. — Amarillo 1989, no pet.); Custard v. State, 746 S.W.2d 4, 6-8 (Tex.App. — Dallas 1987, pet. ref'd). Even when the jury recommends probation, it is the trial court which "grants" probation.

In points one and two Fielder contends that the trial court erred by injecting jail time into the plea bargain agreement when it was not included or contemplated by the parties. The State counters that as jail time is a condition of probation, specifically authorized by TEX.CODE CRIM.PROC.ANN. art. 42.12, that it is within the court's discretion to require Fielder to serve jail time as a condition of probation, citing Simpson v. State, 772 S.W.2d 276, 277 (Tex.App. — Amarillo 1989, no pet.); Custard v. State, 746 S.W.2d 4 (Tex.App. — Dallas 1987, pet. ref'd); Jackson v. State, 720 S.W.2d 153, 154 (Tex.App. — Houston [14th Dist.] 1986, pet. ref'd). The State argues that as no affirmative representation of "no jail time" was ever made by the State, nor was such a condition incorporated in the written plea bargain agreement that in effect there was no plea bargain on this issue. We note that the majority of the cases the State has cited involve jury recommendations of probation to the judge, instead of being plea bargain agreements. Jail time is a condition of probation authorized by TEX.CODE CRIM.PROC.ANN. art. 42.12, and is within the court's discretionary authority to impose or not. Because the documents signed by Fielder did not explicitly state that "no jail time" was a condition of her plea and the judge otherwise has the right to set the conditions, we overrule points one and two.

Trial courts have been authorized to require a period of detention as a condition of felony probation since 1975, and as a condition of misdemeanor probation since 1979. 1975 Tex.Gen.Laws, ch. 341, § 4; 1979 Tex.Gen.Laws, ch. 654, § 1. See also 1981 Tex.Gen.Laws, ch. 142, § 1, and ch. 639, § 2; Custard v. State, 746 S.W.2d 4 (Tex.App. 1987, pet. ref'd). Thus, prior to 1983, persons convicted of driving while intoxicated could be required, as a condition of probation, to serve a period of incarceration of up to thirty days.

Reiterated, the condition challenged by appellant's first point of error is condition nineteen which requires appellant to serve thirty days in the Dallam County Jail. In Custard v. State, 746 S.W.2d 4, 7 (Tex.App. — Dallas 1987, pet. ref'd), in a case wherein felony probation was granted pursuant to jury recommendation, that appellant mounted a like attack upon a condition of probation requiring Custard to spend a thirty day sentence in the Dallas County jail. The Custard Court held: "This statute clearly grants discretion in the trial court to determine whether or not to require a period of penal confinement." Id. By its refusal of a petition for discretionary review, the Court of Criminal Appeals approved that result.