PAROLE AND PROBATION LAW

BY

RALPH PETTY

MIDLAND COUNTY, TEXAS

TABLE OF CONTENTS

REGULAR PROBATION BY THE COUET – ARTICLE 42A.054 AND FORMER ARTICLE 42.12 SECTION 3g C.C.P.

 

 

COURT GRANTED REGULAR PROBATION – FORMER ARTICLE 42.12 SECTION 3g C.C.P. OFFENSES – NOW ARTICLE 42A.054 C.C.P.

ARTICLE 42.12 SECTION 3g C.C.P. - LIMITATION ON COURT ORDERED (REGULAR) COMMUNITY SUPERVISION

(a) The provisions of Section 3 of this article [court awarded probation] do not apply:

(1) to a defendant adjudged guilty of an offense under:

(A) Section 19.02, Penal Code (Murder);

(B) Section 19.03, Penal Code (Capital murder); [effective for offenses committed on or after September 1, 1993]

(C) Section 21.11(a)(1), Penal Code (Indecency with a child by contact) [effective for offenses committed on or after September 1, 1993];

(D) Section 20.04, Penal Code (Aggravated kidnapping);

(E) Section 22.021, Penal Code (Aggravated sexual assault);

(F) Section 29.03, Penal Code (Aggravated robbery);

(G) Chapter 481, Health and Safety Code (drug offenses), for which punishment is increased under:

(i) Section 481.140, Health and Safety Code (use of a child to assist commission of the offense); or

(ii) Section 481.134(c), (d), (e), or (f), Health and Safety Code (drug free zones), if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections;

(H) Section 22.011, Penal Code (Sexual assault);

(I) Section 22.04(a)(1), Penal Code (Injury to a child, elderly individual, or disabled individual), if the offense is punishable as a felony of the first degree and the victim of the offense is a child [effective for offenses committed on or after Sept. 1, 2007];

(J) Section 43.25, Penal Code (Sexual performance by a child) [effective for offenses committed on or after Sept. 1, 2007]; or

(K) Section 15.03, Penal Code, [criminal solicitation] if the offense is punishable as a felony of the first degree;

(L) Section 43.05, Penal Code (Compelling prostitution) [effective for offenses committed on or after Sept. 1, 2007]; or

(M) Section 20A.02, Penal Code (Trafficking of persons) [effective for offenses committed on or after Sept. 1, 2007]; or

(N) Section 30.02, Penal Code (Burglary), if the offense is punishable under Subsection (d) of that section and the actor committed the offense with the intent to commit a felony under Section 21.02, 21.11, 22.011, 22.021, or 25.02 Penal Code [Effective for offenses committed after September 1, 2013]: or

(2) to a defendant when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court. On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment.

(b) If there is an affirmative finding under Subsection (a)(2) in the trial of a felony of the second degree or higher that the deadly weapon used or exhibited was a firearm and the defendant is granted community supervision, the court may order the defendant confined in the Texas Department of Criminal Justice for not less than 60 and not more than 120 days. At any time after the defendant has served 60 days in the custody of the department, the sentencing judge, on his own motion or on motion of the defendant, may order the defendant released to community supervision. The department shall release the defendant to community supervision after he has served 120 days.

Note Article 42.12 Section 3 – Court Ordered Community supervision provides:

(e) A defendant is not eligible for [regular] community supervision under this section if the defendant: (1) is sentenced to serve a term of imprisonment that exceeds 10 years; or (2) is sentence to serve a term of confinement under Section 12.35, [state jail offense] Penal Code.

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ARTICLE 42A.102 C.C.P. AUTHORITY OF THE COURT TO GRANT A DEFERRED ADJUDICATION OF GUILT

 

ARTICLE 42A.102 C.C.P. AUTHORITY OF THE COURT TO GRANT A DEFERRED ADJUDICATION OF GUILT - THE COURT CANNOT GRANT DEFERRED ADJUDICATION FOR CERTAIN LISTED OFFENSES - EFFECTIVE SEPTEMBER 1, 2019

A COURT CAN GRANT A DEFERRED ADJUDICATION OF GUILT TO A DEFENDANT PREVIOUSLY CONVICTED OF SOME FELONY OFFENSES

The court can grant a deferred adjudication of guilt to a defendant previously convicted of some felony offenses except as stated in Article 42A.102 (b) C.C.P., Limitation of the Court to Grant a deferred adjudication of guilt.

ARTICLE 42A.101 C.C.P. - AUTHORITY OF THE COURT TO GRANT DEFERRED ADJUDICATION COMMUNITY SUPERVISION - EFFECTIVE SEPTEMBER 1, 2019

Article 42A.101 C.C.P. - Placement on Deferred Adjudication Community Supervision - Authority of the Court to Place a Defendant on Deferred Adjudication Community Supervision

(a)  Except as provided by Article 42A.102(b), if in the judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt and place the defendant on deferred adjudication community supervision.

(b)  After placing the defendant on deferred adjudication community supervision under Subsection (a), the judge shall inform the defendant orally or in writing of the possible consequences under Articles 42A.108 and 42A.110 of a violation of a condition of deferred adjudication community supervision. If the information is provided orally, the judge must record and maintain the judge’s statement to the defendant. The failure of a judge to inform a defendant of possible consequences under Articles 42A.108 and 42A.110 is not a ground for reversal unless the defendant shows that the defendant was harmed by the failure of the judge to provide the information.

Tex. Code Crim. Proc. Art. 42A.101 effective September 1, 2019

 

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ARTICLE 42A.102(b) C.C.P. - LIMITATION ON THE AUTHORITY OF THE COURT TO GRANT A DEFERRED ADJUDICATION OF GUILT - EFFECTIVE SEPTEMBER 1, 2019

Article 42A.102 C.C.P. - Eligibility for Deferred Adjudication Community Supervision - Limitation of the Authority of the Court to Grant a Deferred Adjudication of Guilt for Listed Offenses

(a) Subject to Subsection (b), a judge may place on deferred adjudication community supervision a defendant charged with an offense under Section 21.11 [Indecency with a child], 22.011 [Sexual Assault], or 22.021 [Aggravated Sexual Assault], Penal Code, regardless of the age of the victim, or a defendant charged with a felony described by Article 42A.453(b) [see list of offenses stated below] only if the judge makes a finding in open court that placing the defendant on deferred adjudication community supervision is in the best interest of the victim. The failure of the judge to make a finding under this subsection is not grounds for the defendant to set aside the plea, deferred adjudication, or any subsequent conviction or sentence.

(b) In all other cases, the judge may grant deferred adjudication community supervision unless:

(1) the defendant is charged with an offense:

(A) under Sections 20A.02 [Trafficking of Persons] or 20A.03 [Continuous Trafficking of Persons] or 49.045 [Driving While Intoxicated With Child Passenger], 49.05 [Flying While Intoxicated], 49.065 [Assembling or Operating an Amusement Ride While Intoxicated], 49.07 [Intoxication Assault], or 49.08 [Intoxication Manslaughter] Penal Code;

(B) under Section 49.04 [Driving While Intoxicated] or 49.06 [Boating While Intoxicated], Penal Code, and, at the time of the offense:

(i) the defendant held a commercial driver’s license or commercial learner’s permit; or

(ii) the defendant’s alcohol concentration, as defined by Section 49.01, was 0.15 or more:

(C) for which punishment may be increased under Section 49.09 Penal Code [enhancement of a DWI offense]; or

(D) for which punishment may be increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections;

(2) the defendant:

(A) is charged with an offense under Section 21.11 [Indecency with a child], 22.011 [Sexual Assault], 22.021 [Aggravated Sexual Assault], Penal Code, 43.04 [Aggravated Promotion of Prostitution], or 43.05 [Compelling Prostitution] Penal Code, regardless of the age of the victim, or a felony described by Article 42A.453(b), other than a felony described by Subdivision (1)(A) or (3)(B) of this subsection; and

(B) has previously been placed on community supervision for an offense under Paragraph (A);

(3) the defendant is charged with an offense under:

(A) Section 21.02 [Continuous Sexual Abuse of a Young Child or Children], Penal Code; or

(B) Section 22.021 [Super Aggravated Sexual Assault of a Child], Penal Code, that is punishable under Subsection (f) of that section [the victim is under 6 years of age or the defendant caused serious bodily injury to the victim or the victim was under 14 and the defendant attempted to cause the death of the victim or another] or under Section 12.42(c)(3) or (4), Penal Code;

(4) the defendant is charged with an offense under Section 19.02 [Murder], Penal Code, except that the judge may grant deferred adjudication community supervision on determining that the defendant did not cause the death of the deceased, did not intend to kill the deceased or another, and did not anticipate that a human life would be taken.

Tex. Code Crim. Proc. Art. 42A.102 effective September 1, 2019

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COURT GRANTED REGULAR PROBATION - ARTICLE 42A.053 C.C.P. AND ARTICLE 42A.054 C.C.P. OFFENSES

 

COURT GRANTED REGULAR PROBATION - ARTICLE 42A.053 C.C.P. - ARTICLE 42A.054 C.C.P. OFFENSES - LIMITATION ON JUDGE ORDERED (REGULAR) COMMUNITY SUPERVISION FOR LISTED OFFENSES EFFECTIVE SEPTEMBER 1, 2019 - FORMER ARTICLE 42.12 SECTION 3g OFFENSES

ARTICLE 42A.054 C.C.P IS THE NEW ARTICLE 42.12 SECTION 3G.

ARTICLE 42A.054 C.C.P. AND FORMER ARTICLE 42.12 SECTION 3g C.C.P. (a)(1) C.C.P. - LIMITATION ON JUDGE ORDERED (REGULAR) COMMUNITY SUPERVISION FOR THE LISTED OFFENSES OR FOR AN OFFENSE IN WHICH THE JUDGEMENT STATES THAT THE DEFENDANT USED OR EXHIBITED A DEADLY WEAPON DURING THE COMMISSION OF THE OFFENSE OR THE DEFENDANT WAS A PARTY TO

(f) Except as provided by Section 508.146, any other inmate is eligible for release on parole when the inmate’s actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less.

Tex. Gov’t Code § 508.145

ARTICLE 42A.053 C.C.P. - AUTHORITY OF THE COURT TO GRANT REGULAR COMMUNITY SUPERVISION & MAXIMUM AND MINIMUM PERIODS OF COMMUNITY SUPERVISION EFFECTIVE SEPTEMBER 1, 2019

ARTICLE 42A.053 C.C.P. - JUDGE ORDERED COMMUNITY SUPERVISION

(a) A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may:

(1) suspend the imposition of the sentence and place the defendant on community supervision; or

(2) impose a fine applicable to the offense and place the defendant on community supervision.

(b) A judge may not deny community supervision to a defendant based solely on the defendant’s inability to speak, read, write, hear, or understand English.

(c) A defendant is not eligible for community supervision under this article if the defendant is sentenced to serve:

(1) a term of imprisonment that exceeds 10 years; or

(2) a term of confinement under Section 12.35 [state jail felony], Penal Code.

(d) In a felony case:

(1) the minimum period of community supervision is the same as the minimum term of imprisonment applicable to the offense; and

(2) the maximum period of community supervision is:

(A) 10 years, for a felony other than a third degree felony described by Paragraph (B); and

(B) five years, for any of the following third degree felonies:

(i) a third degree felony under Title 7, Penal Code [offenses against property]; and

(ii) a third degree felony under Chapter 481, Health and Safety Code.

(e) Notwithstanding Subsection (d), the minimum period of community supervision under this article for a felony described by Article 42A.453(b) is five years. [See list of Article 42A.453(b) offenses stated below].

(f) The maximum period of community supervision in a misdemeanor case is two years.

(g) Notwithstanding Subsection (d)(2) or (f), a judge may extend the maximum period of community supervision in the manner provided by Article 42A.753 or 42A.757.

Tex. Code Crim. Proc. Art. 42A.053

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ARTICLE 42A.453(b) C.C.P. LISTED OFFENSES REQUIRING A CHILD SAFETY ZONE AS A CONDITION OF COMMUNITY SUPERVISION

ARTICLE 42A.453 C.C.P.

(a) In this article, “playground,” “premises,” “school,” “video arcade facility,” and “youth center” have the meanings assigned by Section 481.134, Health and Safety Code.

ARTICLE 42A.453(b) C.C.P. LISTED OFFENSES

(b)  This article applies to a defendant placed on community supervision for an offense under:

(1)  Section 20.04(a)(4)[Aggravated Kidnapping with intent to inflict bodily injury or violate victim sexually], Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;

(2)  Section 20A.02 [Trafficking of Persons], Penal Code, if the defendant:

(A)  trafficked the victim with the intent or knowledge that the victim would engage in sexual conduct, as defined by Section 43.25, Penal Code; or

(B)  benefited from participating in a venture that involved a trafficked victim engaging in sexual conduct, as defined by Section 43.25, Penal Code;

(3)  Section 21.08 [Indecent Exposure], 21.11 [Indecency with a Child, 22.011 [Sexual Assault], 22.021 [Aggravated Sexual Assault], or 25.02 [Prohibited Sexual Conduct], Penal Code;

(4)  Section 30.02 [Burglary], Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony listed in Subdivision (1) or (3); or

(5)  Section 43.05(a)(2) [Compelling Prostitution of a child younger than 18], 43.25 [Sexual Performance by a Child, or 43.26 [Possession or Promotion of Child Pornography], Penal Code.

Tex. Code Crim. Proc. Art. 42A.453

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ARTICLE 42A.453(c) C.C.P. CHILD SAFETY ZONE

If the Court grants community supervision to a defendant described by Subsection (b) and the Judge determines that a child as defined by Section 22.011(c), Penal Code, was the victim of the offense, the judge shall establish a child safety zone applicable to the defendant by requiring as a condition of community supervision that the defendant: SEE STATUTE.

(1)  not:

(A)  supervise or participate in any program that:

(i)  includes as participants or recipients persons who are 17 years of age or younger; and

(ii)  regularly provides athletic, civic, or cultural activities; or

(B)  go in, on, or within 1,000 feet of a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility; and

(2)  attend psychological counseling sessions for sex offenders with an individual or organization that provides sex offender treatment or counseling as specified or approved by the judge or the defendant’s supervision officer.

(d)  Notwithstanding Subsection (c)(1), a judge is not required to impose the conditions described by Subsection (c)(1) if the defendant is a student at a primary or secondary school.

(e)  At any time after the imposition of a condition under Subsection (c)(1), the defendant may request the court to modify the child safety zone applicable to the defendant because the zone as created by the court:

(1)  interferes with the defendant’s ability to attend school or hold a job and consequently constitutes an undue hardship for the defendant; or

(2)  is broader than is necessary to protect the public, given the nature and circumstances of the offense.

(f)  A supervision officer for a defendant described by Subsection (b) may permit the defendant to enter on an event-by-event basis into the child safety zone from which the defendant is otherwise prohibited from entering if:

(1)  the defendant has served at least two years of the period of community supervision;

(2)  the defendant enters the zone as part of a program to reunite with the defendant’s family;

(3)  the defendant presents to the supervision officer a written proposal specifying where the defendant intends to go within the zone, why and with whom the defendant is going, and how the defendant intends to cope with any stressful situations that occur;

(4)  the sex offender treatment provider treating the defendant agrees with the supervision officer that the defendant should be allowed to attend the event; and

(5)  the supervision officer and the treatment provider agree on a chaperon to accompany the defendant and the chaperon agrees to perform that duty.

(g)  Article 42A.051(b) does not prohibit a supervision officer from modifying a condition of community supervision by permitting a defendant to enter a child safety zone under Subsection (f).

(h)  Notwithstanding Subsection (c)(1)(B), a requirement that a defendant not go in, on, or within 1,000 feet of certain premises does not apply to a defendant while the defendant is in or going immediately to or from a:

(1)  community supervision and corrections department office;

(2)  premises at which the defendant is participating in a program or activity required as a condition of community supervision;

(3)  residential facility in which the defendant is required to reside as a condition of community supervision, if the facility was in operation as a residence for defendants on community supervision on June 1, 2003; or

(4)  private residence at which the defendant is required to reside as a condition of community supervision.

(i)  A supervision officer who under Subsection (c)(2) specifies a sex offender treatment provider to provide counseling to a defendant shall:

(1)  contact the provider before the defendant is released;

(2)  establish the date, time, and place of the first session between the defendant and the provider; and

(3)  request the provider to immediately notify the supervision officer if the defendant fails to attend the first session or any subsequent scheduled session.

Tex. Code Crim. Proc. Art. 42A.453

 

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ARTICLE 42A.453(b) C.C.P. - CLEAR LIST OF OFFENSES REQUIRING A CHILD SAFETY ZONE

21.08 - Indecent Exposure

21.11 - Indecency with a Child

22.011 - Sexual Assault of a child or adult

22.021 - Aggravated Sexual Assault of a child or adult

25.02 - Prohibited Sexual Conduct (Incest)

43.05(a)(2) Compelling Prostitution of a child younger

than 18 years of age

43.25 - Sexual Performance by a Child

43.26 - Possession or Promotion of Child Pornography

20.04(a)(4) aggravated kidnapping if the defendant committed the offense with the intent to violate or abuse the victim sexually

30.02(d) first degree burglary if committed with intent to commit a particular offense stated

20A trafficking of persons under some circumstances stated

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ARTICLE 42A.054 C.C.P. OFFENSES - LIMITATION ON JUDGE ORDERED (REGULAR) COMMUNITY SUPERVISION FOR LISTED OFFENSES EFFECTIVE SEPTEMBER 1, 2019 - FORMER ARTICLE 42.12 SECTION 3g OFFENSES

ARTICLE 42A.054 C.C.P IS THE NEW ARTICLE 42.12 SECTION 3G.

ARTICLE 42A.054 C.C.P. AND FORMER ARTICLE 42.12 SECTION 3g C.C.P. (a)(1) C.C.P. - LIMITATION ON JUDGE ORDERED (REGULAR) COMMUNITY SUPERVISION FOR THE LISTED OFFENSES OR FOR AN OFFENSE IN WHICH THE JUDGEMENT STATES THAT THE DEFENDANT USED OR EXHIBITED A DEADLY WEAPON DURING THE COMMISSION OF THE OFFENSE OR THE DEFENDANT WAS A PARTY TO THE OFFENSE AND KNEW THAT A DEADLY WEAPON WOULD BE USED OR EXHIBITED.

NOTE: The court does not have the authority to grant regular probation for the offense of continuous sexual assault of a child under section 21.02 penal code because the range of punishment for the offense is for any term of not more than 99 years or less than 25 years. Article 42A.053(c) C.C.P., authority of the court to grant probation, states that the court cannot grant probation if the punishment assessed exceeds 10 years in prison. Article 42A.053(c) C.C.P. states, “(c) A defendant is not eligible for community supervision under this article if the defendant is sentenced to serve: (1) a term of imprisonment that exceeds 10 years; or (2) a term of confinement under Section 12.35 [state jail felony], Penal Code.”

LISTED ARTICLE 42A.054 C.C.P. OFFENSES AND FORMER ARTICLE 42.12 SECTION 3g C.C.P. (a)(1) C.C.P. OFFENSES ARE OFFENSES FOR WHICH THE DEFENDANT MUST SERVE ONE-HALF OF THE DEFENDANT’S SENTENCE DAY FOR DAY BEFORE THE DEFENDANT BECOMES ELIGIBLE FOR PAROLE.

ARTICLE 42A.054 C.C.P. - LIMITATION ON JUDGE-ORDERED COMMUNITY SUPERVISION EFFECTIVE SEPTEMBER 1, 2019

(a) Article 42A.053 [authority of the court to grant regular probation] does not apply to a defendant adjudged guilty of an offense under:

(1) Section 15.03, Penal Code, [criminal solicitation] if the offense is punishable as a felony of the first degree;

(2) Section 19.02, Penal Code (Murder);

(3) Section 19.03, Penal Code (Capital Murder);

(4) Section 20.04, Penal Code (Aggravated Kidnapping);

(5) Section 20A.02, Penal Code (Trafficking of Persons);

(6) Section 20A.03, Penal Code (Continuous Trafficking of Persons);

(7) Section 21.11, Penal Code (Indecency with a Child);

(8) Section 22.011, Penal Code (Sexual Assault);

(9) Section 22.021, Penal Code (Aggravated Sexual Assault);

(10) Section 22.04(a)(1), Penal Code (Injury to a Child, Elderly Individual, or Disabled Individual), if:

(A) the offense is punishable as a felony of the first degree; and

(B) the victim of the offense is a child;

(11) Section 29.03, Penal Code (Aggravated Robbery);

(12) Section 30.02, Penal Code (Burglary), if:

(A) the offense is punishable under Subsection (d) of that section; and

(B) the actor committed the offense with the intent to commit a felony under Section 21.02 [continuous sexual abuse of young child or children], 21.11 [indecency with a child], 22.011 [sexual assault], 22.021 [aggravated sexual assault], or 25.02 [prohibited sexual conduct], Penal Code;

(13) Section 43.04 Penal Code (Aggravated Promotion of Prostitution);

(14) Section 43.05, Penal Code (Compelling Prostitution);

(15) Section 43.25, Penal Code (Sexual Performance by a Child); or

(16) Chapter 481, Health and Safety Code, for which punishment is increased under:

(A) Section 481.140 of that code (Use of Child in Commission of Offense); or

(B) Section 481.134(c), (d), (e), or (f) of that code (Drug-free Zones) if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections.

(b) Article 42A.053 [court granted community supervision] does not apply to a defendant when it is shown that:

(1) a deadly weapon as defined by Section 1.07, Penal Code, was used or exhibited during the:

(A) commission of a felony offense; or

(B) immediate flight from the commission of a felony offense; and

(2) the defendant:

(A) used or exhibited the deadly weapon; or

(B) was a party to the offense and knew that a deadly weapon would be used or exhibited.

(c) On an affirmative finding regarding the use or exhibition of a deadly weapon as described by Subsection (b), the trial court shall enter the finding in the judgment of the court.

(d) On an affirmative finding that the deadly weapon under Subsection (c) was a firearm, the court shall enter that finding in its judgment.

(e) Notwithstanding Subsection (a), with respect to an offense committed by a defendant under Section 43.04 [aggravated promotion of prostitution] or 43.05 [compelling prostitution], Penal Code, a judge may place the defendant on community supervision as permitted by Article 42A.053 if the judge makes a finding that the defendant committed the offense solely as a victim of an offense under Section 20A.02 [trafficking of persons], 20A.03 [continuous trafficking of persons], 43.03 [promotion of prostitution], 43.04 [aggravated promotion of prostitution], or 43.05 [compelling prostitution], Penal Code.

Tex. Code Crim. Proc. Art. 42A.054 effective September 1, 2019

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AN ATTEMPTED ARTICLE 42A.054 C.C.P. LISTED OFFENSE FORMERLY AN ARTICLE 42.12 SECTION 3g C.C.P. (a)(1) C.C.P. OFFENSE DOES NOT LIMIT THE AUTHORIZATION OF THE COURT TO GRANT COMMUNITY SUPERVISION

A conviction for an attempted offense under Section 15.01 Penal Code does constitute a conviction for the offense attempted. Parfait v. State, 120 S.W.3d 348 (Tex. Crim. App. 2003). Article 42.12 Section 3g C.C.P. (a)(1) C.C.P. now Article 42A.054 C.C.P. does not list Section 15.01 Penal Code as a listed 3g offense for which the court cannot grant probation, and a conviction for an attempted Article 42.12 Section 3g C.C.P. offense does not limit or impact the authority of the court to grant probation for a conviction for an attempted Article 42.12 Section 3g C.C.P. offense.

Leggett v. State, 132 S.W.3d 380 (Tex. Crim. App. 20014)

ARTICLE 42A.055 & 42A.056 C.C.P. EFFECTIVE JANUARY 1, 2019 - ELIGIBILITY FOR JURY PROBATION AND NO JURY PROBATION FOR CERTAIN OFFENSES

ARTICLE 42A.055 C.C.P. – JURY RECOMMENDED COMMUNITY SUPERVISION EFFECTIVE JANUARY 1, 2017 AND SEPTEMBER 1, 2019

Article 42A.055 C.C.P. – Jury recommended Community Supervision effective January 1, 2017 and September 1, 2019

(a) A jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision. A judge shall suspend the imposition of the sentence and place the defendant on community supervision if the jury makes that recommendation in the verdict.

(b) A defendant is eligible for community supervision under this article only if:

(1) before the trial begins, the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state; and

(2) the jury enters in the verdict a finding that the information contained in the defendant’s motion is true.

(c) If the jury recommends to the judge that the judge place the defendant on community supervision, the judge shall place the defendant on community supervision for any period permitted under Articles 42A.053(d) and (f), as appropriate.

(d) A judge may extend the maximum period of community supervision in the manner provided by Article 42A.753 or 42A.757.

Tex. Code Crim. Proc. Art. 42A.055

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ARTICLE 42A.056 C.C.P. - LIMITATION ON JURY RECOMMENDED COMMUNITY SUPERVISION EFFECTIVE SEPTEMBER 1, 2019 - FORMER ARTICLE 42.12 SECTION 4 C.C.P.

Article 42A.056 C.C.P. - Limitation on Jury Recommended Community Supervision effective September 1, 2019

A defendant is not eligible for community supervision under Article 42A.055 [by a jury] if the defendant:

(1) is sentenced to a term of imprisonment that exceeds 10 years;

(2) is convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under Article 42A.551;

(3) is adjudged guilty of an offense under Section 19.02, Penal Code [murder];

(4) is convicted of an offense under Section 22.011 [sexual assault], or 22.021 [aggravated sexual assault], Penal Code, if the victim of the offense was younger than 14 years of age at the time the offense was committed;

(5) is convicted of an offense under Section 20.04 [aggravated kidnapping], Penal Code, if:

(A) the victim of the offense was younger than 14 years of age at the time the offense was committed; and

(B) the actor committed the offense with the intent to violate or abuse the victim sexually;

(6) is convicted of an offense under Section 20A.02 [trafficking of persons], 20A.03, 43.04, 43.05 [compelling prostitution], or 43.25 [sexual performance by a child], Penal Code; or

(7) is convicted of an offense for which punishment is increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections.

Tex. Code Crim. Proc. Art. 42A.056 September 1, 2019

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FORMER ARTICLE 42.12 SECTION 4 C.C.P. EFFECTIVE SEPTEMBER 1, 2007 - LIMITATION ON JURY RECOMMENDED PROBATION

Article 42.12 Section 4 C.C.P. effective September 1, 2007 provides that there is no probation by a jury for certain offenses. This change in the law applies only to offense committed on or after September 1, 2007.

Those offenses are:

(1) murder under 19.02 Penal Code.

(2) offenses under 3g(a)(1)(C), [indecency with a child] or 3g(a)(1)(E) [aggravated sexual assault] or 3g(a)(1)(H) [sexual assault] if the victim of the offense was younger than 14 years of age at the time the offense was committed. Those offenses are indecency with a child by contact under section 21.11(a)(1) Penal Code, aggravated sexual assault of a child under Section 22.021 Penal Code, and sexual assault of a child under Section 22.011 Penal Code.

(3) aggravated kidnapping of a child, Section 22.04 Penal Code, under 3g(a)(1)(D) C.C.P. if the victim of the offense was younger than 14 years of age at the time the offense was committed and the actor committed the offense with the intent to violate or abuse the victim sexually.

(4) the offense of injury to a child or elderly individual or disabled individual under 3g(a)(1)(I) C.C.P. if the offense is punishable as a felony of the first degree and the victim of the offense is a child.

The amendment to Article 42.12 Section 4 C.C.P. applies only to offense committed on or after September 1, 2007. Acts 2007, 80th Leg., ch. 593 (H.B. 8), §§ 1.05--1.07, effective September 1, 2007. "SECTION 4.01. (a) Except as provided by Subsections (b) and (c) of this section, the change in law made by this Act applies only to an offense committed on or after September 1, 2007. An offense committed before September 1, 2007, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For the purposes of this section, an offense was committed before September 1, 2007, if any element of the offense occurred before that date."

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JUVENILE ADJUDICATION RESULTING IN INCARCERATION DOES NOT DISQUALIFY DEFENDANT FROM PROBATION - JUVENILE ADJUDICATIONS RESULTING IN INCARCERATION MY BE USED AS A PRIOR CONVICTION TO ENHANCE PUNISHMENT

 

Section 12.42(f) Penal Code provides that an adjudication by a juvenile court after January 1, 1996 for an offense constituting a felony offense resulting in commitment to TYC is a final felony conviction that may be used to enhance the punishment for a third degree felony offense to a second degree felony offense, a second degree felony offense to a first degree felony offense or a first degree felony offense to a punishment range of 15 to 99 years or life. A juvenile adjudication for a felony offense resulting in confinement in TYC may not be used to enhance a felony offense as an habitual offender.

Section 12.42 Penal Code

(f)  For the purposes of Subsections (a), (b), and (c)(1), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Juvenile Justice Department under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, or to a post- adjudication secure correctional facility under Section 54.04011, Family Code, is a final felony conviction.

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A defendant who was adjudicated for a felony offense as a juvenile is eligible for probation by a jury notwithstanding that the defendant was confined in the Texas Youth Commission as a result of the juvenile adjudication. “Under these statutes, a juvenile felony adjudication can be used to enhance punishment, but not to bar eligibility for probation.”

Thompson v. State, 267 S.W.3d 514 (Tex. App.--Austin 2008, pet. ref'd)

A defendant who was adjudicated of a felony offense as a juvenile is eligible for probation by a jury notwithstanding that the defendant was confined in the Texas Youth Commission as a result of the juvenile adjudication.

Thompson v. State, 267 S.W.3d 514 (Tex. App.--Austin 2008, pet. ref'd)

"Thompson complains that he was improperly prohibited from discussing probation at voir dire. The State filed a motion in limine to prevent "[a]ttempts by defense counsel to voir dire on the issue of probation as the Defendant is ineligible." After hearing arguments, the court stated, "I'm going to find that [juvenile felony] adjudication is a final felony conviction for the purpose of making him probation ineligible under Article 42-42.12, Section 4(f)-4(e), and, therefore, I'm not going to permit you to voir dire on probation." During his voir dire examination, Thompson's counsel re-urged his objection and desire [PAGE 518] to discuss probation, and was again refused. ¶ We hold, however, that Thompson was eligible to apply for probation and, therefore, was entitled to discuss probation at voir dire. Probation was a possibility up until at least the end of the punishment hearing. Contrary to the trial court's pronouncements, the legislature limited the use of juvenile felony adjudications to enhancement of punishment. The penal code provides as follows: For the purposes of Subsections (a), (b), (c)(1), and (e), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, is a final felony conviction. Tex. Penal Code Ann. § 12.42(f) (emphasis added). The family code provides as follows: An adjudication under Section 54.03 that a child engaged in conduct that occurred on or after January 1, 1996, and that constitutes a felony offense resulting in commitment to the Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m) or 54.05(f) is a final felony conviction only for the purposes of Sections 12.42(a), (b), (c)(1), and (e), Penal Code. Tex. Fam. Code Ann. § 51.13(d) (emphasis added). Had the legislature omitted the introductory clause "For the purposes of Subsections (a), (b), (c)(1), and (e)," from penal code section 12.42, or not used the "only" in family code section 51.13, a credible argument might be made that the listing of the enhancement provisions was non-exclusive. However, the legislature used limiting language in both statutes, and we do not believe the circumstances and the tenets of statutory construction permit us to ignore those choices. n2 See Tex. Gov't Code Ann. § 311.023 (West 2005). By contrast, there is no similar provision regarding the use of juvenile adjudications as final felony convictions in the probation statute--either in the family code and penal code sections just set out, or the probation provisions of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 42.12, § 4(e). Under these statutes, a juvenile felony adjudication can be used to enhance punishment, but not to bar eligibility for probation.

Thompson v. State, 267 S.W.3d 514, 517-518 (Tex. App--Austin 2008, pet. ref'd)

THE REQUIREMENTS FOR PROBATION BY A JURY

The requirements for probation by a jury.

1. The defendant must file a sworn affidavit with the court that the defendant “has not previously been convicted of a felony in this or any other state.” Article 42A.055 C.C.P. effective January 1, 2017; Former Article 42.12 Section 4(e) Penal Code. Former Article 42.12, Sec. 4(d)(3) C.C.P.; Beyince v. State, 954 S.W.2d 878 (Tex. App.--Houston [14th Dist.] 1997, no pet.). Note a State Jail Felony Offense is a felony offense. Section 12.04 Penal Code.

2. The sworn affidavit that the defendant “has not previously been convicted of a felony in this or any other state must be filed before voir dire in the cause begins. Article 42.12, Sec. 4(d)(3) C.C.P.; Wyle v. State, 777 S.W.2d 709, 716-717 (Tex. Crim. App. 1989). "Cantu asserts that the trial court abused its discretion in denying her application for community supervision. Cantu's application was not filed until after voir dire. Accordingly, the application was not timely filed, and the trial court did not err in refusing to consider it. See Wyle v. State, 777 S.W.2d 709, 716 (Tex.Crim.App.1989); Noyola v. State, 25 S.W.3d 18, 22 (Tex. App.--El Paso 1999, no pet.)." Cantu v. State, (Tex. App.--San Antonio 2006, no pet); unpublished; No. 04-05-00473-CR. The order of trial appears to dictate that the defendant file his election for jury to assess punishment prior to voir dire of the jury panel.

3. The sworn affidavit that the defendant “has not previously been convicted of a felony in this or any other state must be filed before “the trial began.” Where there was no pretrial in the case and the defendant was eligible for probation, the defendant was not required to elect the jury to access punishment under Article 37.07(2)(b) until the time he enters his plea to the indictment. Postell v. State, 693 S.W.2d 462 (Tex. Crim. App. 1985); Ceaser v. State, 624 S.W.2d 669 (Tex. App.--Beaumont, 1982, no pet); Ceaser v. State opinion adopted in Postell v. State, 693 S.W.2d 462 (Tex. Crim. App. 1985); Toney v. State, 586 S.W.2d 856 (Tex. Crim. App. 1979)

4. The defendant must prove and the jury must find that the defendant has never before been convicted of a felony offense. Article 42.12, Sec. 4(d)(3) C.C.P.; Thompson v. State, 267 S.W.3d 514, 519 (Tex. App--Austin 2008, pet. ref'd); Beyince v. State, 954 S.W.2d 878 (Tex. App.--Houston [14th Dist.] 1997, no pet.).

ELIGIBILITY FOR RELEASE ON PAROLE OR MANDATORY SUPERVISION

ELIGIBILITY FOR RELEASE ON PAROLE OR MANDATORY SUPERVISION IS DETERMINED BY THE LAW IN EFFECT AT THE TIME OF THE COMMISSION OF THE OFFENSE

"It is well-established that an inmate's eligibility for release to mandatory supervision is controlled by the mandatory supervision statute in effect on the date that the inmate committed the offense. 11." Footnote 11 cites Ex parte Thompson, 173 s.W.3d 458, 459 (Tex. Crim. App. 2005)(citing Ex parte Hall 995 S.W.2d 151,152 (tex. Crim. App. 1999).

Ex parte Noyola, 215 s.W.3d 862, 865 (Tex. Crim. App. 2007)

The eligibility of an inmate for release on parole or mandatory supervision is determined by the law in effect at the time of the commission of the offense.

Ex parte Rutledge, 741 S.W.2d 460 (Tex. Crim. App. 1987)

Ex parte Yates, 659 S.W.2d 840 (Tex. Crim. App. 1983).

The eligibility of an inmate for parole is determined by the law in effect at the time of the commission of the offense.

Ex parte Yates, 659 S.W.2d 840 (Tex. Crim. App. 1983)

The one-fourth rule regarding eligibility for parole under Article 42.18 C.C.P. is not applied retroactively to sentences occurring before September 1, 1987, the effective date of the rule. Eligibility for parole for sentences occurring before September 1, 1987 is calculated by the one-third rule then in effect.

Ex parte Choice, 828 S.W.2d 5 (Tex. Crim. App. 1992)

Parole eligibility for consecutive sentences was changed by Article 42.18 C.C.P. on September 1, 1987. The change effective September 1, 1987 requires that eligibility for parole for consecutive sentence be calculated separately instead of treating them as one sentence. This rule applies only to sentences occurring after the effective date of the revision of Article 42.18 C.C.P.

Ex parte Choice, 828 S.W.2d 5 (Tex. Crim. App. 1992)

Eligibility for administrative good time credit under the Prison Management Act must be determined with respect to the law in effect at the time of the commission of the offense, and the amendment to the Prison Management Act must not be applied retroactively to one who committed the offense prior to the effective date of the amendments.

Ex parte Ruiz, 750 S.W.2d 217 (Tex. Crim. App. 1988)

Ex parte Rutledge, 741 S.W.2d 460 (Tex. Crim. App. 1987)

Eligibility for parole is part of the punishment annexed to the crime, and legislation adversely affecting eligibility for parole enacted after the date of the commission of the offense may not be applied retroactively least the constitution prohibiting ex post facto laws is violated.

Ex parte Rutledge, 741 S.W.2d 460 (Tex. Crim. App. 1987)

"In that case [Ex parte Alegria, 464 S.W.2d 868 (Tex. Crim. App. 1971)], the defendant was convicted and a life sentence was imposed in 1961. The law in effect at the time of the commission of the offense authorized eligibility for parole at the cumulation of fifteen years of credit. In 1967, the statute was amended to extend the period of time for parole eligibility to twenty years. This Court, applying both the federal and state constitutions, found application of the amended law to the defendant, who committed the offense prior to enactment, violative of the ex post facto proscription."

Ex parte Rutledge, 741 S.W.2d 460 (Tex. Crim. App. 1987)

Eligibility for parole is part of the punishment annexed to the crime, and legislation adversely affecting eligibility for parole enacted after the date of the commission of the offense may not be applied retroactively least the constitution prohibiting ex post facto laws is violated.

Ex parte Rutledge, 741 S.W.2d 460 (Tex. Crim. App. 1987)

"In that case [Ex parte Alegria, 464 S.W.2d 868 (Tex. Crim. App. 1971)], the defendant was convicted and a life sentence was imposed in 1961. The law in effect at the time of the commission of the offense authorized eligibility for parole at the accumulation of fifteen years of credit. In 1967, the statute was amended to extend the period of time for parole eligibility to twenty years. This Court, applying both the federal and state constitutions, found application of the amended law to the defendant, who committed the offense prior to enactment, violative of the ex post facto proscription."

Ex parte Rutledge, 741 S.W.2d 460 (Tex. Crim. App. 1987)

 

STATUTES RELATING TO ELIGIBILITY FOR RELEASE ON PAROLE IN GOVERNMENT CODE - SECTION 508.145 GOVERNMENT CODE – EFFECTIVE JANUARY 1, 2021 AND BEFORE – NO PAROLE FOR CERTAIN OFFENSES – PAROLE AFTER ONE-HALF OF SENTENCE FOR CERTAIN OFFENSES (SECTION 508.145(d)) – PAROLE AFTER ONE-FOURTH CALANDAR TIME PLUS GOOD CONDUCT TIME (SECTION 508.145(F)) FOR CERTAIN OFFENSES

SECTION 508.145 GOVERNMENT CODE - ELIGIBILITY FOR RELEASE ON PAROLE; COMPUTATION OF PAROLE ELIGIBILITY DATE - EFFECTIVE JANUARY 1, 2017 AND UNCHANGED FOR 2021

Section 508.145 Government Code - Eligibility for Release on Parole; Computation of Parole Eligibility Date - Effective January 1, 2017 and unchanged for 2021

(a) [NO PAROLE EVER] An inmate under sentence of death, serving a sentence of life imprisonment without parole [capital felony], serving a sentence for an offense under Section 21.02 [Continuous Sexual Abuse of Young Child or Children], Penal Code, or serving a sentence for an offense under Section 22.021 [Aggravated Sexual Assault], Penal Code, that is punishable under Subsection (f) of that section [victim is under six years of age or victim is under 14 years of age and the offense was committed under the one of the five circumstances stated in Section 22.021(a)(2)(A) Penal Code] is not eligible for release on parole.

(b) [NO PAROLE FOR 40 YEARS] An inmate serving a life sentence under Section 12.31(a)(1) Penal Code [capital murder and defendant was younger than 18], for a capital felony is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 40 calendar years.

(c) [NO PAROLE FOR 35 YEARS] An inmate serving a sentence under Section 12.42(c)(2) [convictions of certain offenses and prior conviction of certain offense], Penal Code, is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 35 calendar years.

(d) [ELIGIBILITY FOR PAROLE AFTER 1/2 OF SENTENCE OR 30 CALENDAR YEARS]

(1) This subsection applies only to an inmate who is serving a sentence for:

(A) an offense described by Article 42A.054(a), Code of Criminal Procedure, other than an offense under Section 19.03 [Capital Murder], Penal Code; [See Article 42A.054(a) C.C.P. below]

(B) an offense for which the judgment contains an affirmative finding under Article 42A.054(c) or (d), Code of Criminal Procedure [deadly weapon finding];

(C) an offense under Section 20A.03 [Continuous trafficking of Persons], Penal Code; or

(D) an offense under Section 71.02 [Engaging in Organized Criminal Activity] or 71.023 [Directing activities of Criminal Street gangs], Penal Code.

(2) An inmate described by Subdivision (1) is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on parole in less than two calendar years.

(3) Notwithstanding Subdivision (2), an inmate who is serving a sentence for an offense under Section 22.021, Penal Code, is not eligible for release on parole if the inmate is serving a sentence for an offense for which punishment was enhanced under Section 12.42(c)(4), Penal Code.

(d-1) Notwithstanding Subsection (d), for every 12 months that elapse between the date an arrest warrant is issued for the inmate following an indictment for the offense and the date the inmate is arrested for the offense, the earliest date on which an inmate is eligible for parole is delayed by three years from the date otherwise provided by Subsection (d), if the inmate is serving a sentence for an offense under Section 19.02 [murder], 22.011 [sexual assault], or 22.021 [aggravated sexual assault], Penal Code.

(e) [NO PAROLE FOR FIVE YEARS OR SENTENCE SERVED] An inmate serving a sentence for which the punishment is increased under Section 481.134, Health and Safety Code, is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good conduct time, equals five years or the term to which the inmate was sentenced, whichever is less.

(f) Except as provided by Section 508.146, any other inmate is eligible for release on parole when the inmate’s actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less.

Tex. Gov’t Code § 508.145

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ELIGIBILITY FOR PAROLE FOR SEXUAL OFFENSES

NO PAROLE. No parole for the offense of continuous sexual abuse of a young child or children under section 22.01 Penal Code. No parole for super aggravated sexual assault of a child under Section 22.021 Penal Code, “that is punishable under Subsection (f) of that section,” [the victim is under 6 years of age or the defendant caused serious bodily injury to the victim or the victim was under 14 and the defendant attempted to cause the death of the victim or another].

Section 508.145 Government Code - Eligibility for Release on Parole; Computation of Parole Eligibility Date - Effective January 1, 2017 and unchanged for 2019 provides:

(a) An inmate under sentence of death, serving a sentence of life imprisonment without parole, serving a sentence for an offense under Section 21.02 [Continuous Sexual Abuse of Young Child or Children], Penal Code, or serving a sentence for an offense under Section 22.021 [Super Aggravated Sexual Assault of a Child], Penal Code, that is punishable under Subsection (f) of that section is not eligible for release on parole.

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PAROLE AFTER SERVING ONE-HALF OF SENTENCE DAY FOR DAY. Section 508.145 Government Code provides that a defendant is not eligible for parole for an offense listed in Article 42A.054 C.C.P. until the defendant has served one-half of the defendant’s sentence day for day. A defendant is eligible for parole under Section 508.145 Government Code and Article 42A.054 C.C.P. for the sexual offense of indecency with a child under Section 21.11 Penal Code, for the sexual offense of sexual assault under Section 22.011 Pena Code, for the sexual offense of aggravated sexual assault under Section 22.021 Penal Code and for the sexual offense of sexual performance by a child under Section 43.25 Penal Code after the defendant has served one-half of the defendant’s sentence day for day.

Article 42A.054 C.C.P. lists the following sexual offenses:

(7) Section 21.11, Penal Code (Indecency with a Child);

(8) Section 22.011, Penal Code (Sexual Assault);

(9) Section 22.021, Penal Code (Aggravated Sexual Assault);

(15) Section 43.25, Penal Code (Sexual Performance by a Child); or

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Section 508.145(d) Government Code provides:

(d)

(1) This subsection applies only to an inmate who is serving a sentence for:

(A) an offense described by Article 42A.054(a), Code of Criminal Procedure, other than an offense under Section 19.03 [Capital Murder], Penal Code; [See Article 42A.054(a) C.C.P. below]

(B) an offense for which the judgment contains an affirmative finding under Article 42A.054(c) or (d), Code of Criminal Procedure [deadly weapon finding];

(C) an offense under Section 20A.03 [Continuous trafficking of Persons], Penal Code; or

(D) an offense under Section 71.02 [Engaging in Organized Criminal Activity] or 71.023 [Directing activities of Criminal Street gangs], Penal Code.

(2) An inmate described by Subdivision (1) is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on parole in less than two calendar years.

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