ELIGIBILITY FOR PROBATION BY THE COURT OR JURY FOR A SEXUAL OFFENSE, PAROLE AND STACKING

Continuous sexual abuse of a young child or children under Section 21.02 Penal Code – life, or for any term of not more than 99 years or less than 25 years. No parole.

Aggravated sexual assault under Section 22.021 Penal Code – First Degree Felony Offense. Parole after serving one-half of the sentence day for day.

Supper aggravated sexual assault under Section 22.021 Penal Code, (victim was younger than six years of age at the time of the offense or the victim was younger than 14 years of age at the time of the offense and the defendant caused serious bodily injury to the victim or attempted to cause the death of the victim or another in the course of the same criminal episode). See Section 22.021(f) and Section 22.021(a)(2)(A) Penal Code. Life, or for any term of not more than 99 years or less than 25 years. No parole.

Sexual Assault under Section 22,011 Penal Code. Second Degree Felony offense under Section 22.011(f) Penal Code. Section 22.011(f) Penal Code: “22.011(f) An offense under this section is a felony of the second degree, except that an offense under this section is: (1) A felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01 or; (2) a person with whom the actor was prohibited from engaging in sexual or deviate sexual intercourse under Section 25.02 [Prohibited Sexual Conduct].” Parole after serving one-half of the sentence day for day.

Indecency with a child by sexual contact under Section 21.11(a)(1) Penal Code: “engages in sexual contact with the child or causes the child to engage in sexual contact.” Second Degree Felony Offense. Section 21.11 (d) Penal Code: “(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.” Parole after serving one-half of the sentence day for day.

Indecency with a child by exposure under Section 21.11(a)(2) Penal Code: “(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or (B) causes the child to expose the child’s anus or any part of the child’s genitals.” Third Degree Felony. Section 21.11 (d) Penal Code: “(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.” Parole after serving one-half of the sentence day for day.

THE REQUIREMENT THAT THE FACTS OF THE OFFENSE THAT EFFECT THE RANGE OF PUNISHMENT OR ELIGIBILITY FOR PROBATION OR DEFERRED ADJUDICATION BE PLEAD IN THE INDICTMENT

“The indictment specifically alleged that Anthony intentionally and knowingly penetrated the sexual organ of S.S., a child who was younger than fourteen years old.n12 The record contains no notice or any indication that the State intended to invoke § 22.021(f)'s twenty-five-year statutory minimum for sexual assault of a child under six. Anthony's Felony Plea of Guilty, Admonishments, Waivers, Stipulations and Judicial Confession shows that he pleaded guilty and judicially confessed to sexually assaulting a child younger than fourteen years old as alleged in the indictment. He pleaded guilty to a first-degree felony with a punishment range of five to ninety-nine years or life, n13 and was admonished on that range of punishment both orally and in writing at the time he received deferred adjudication. Other than the notation that the victim was three years old—a finding, we add, that could be accurate under the indictment alleging a victim younger than fourteen years old—the record contains no other indication that any of the parties or the judge intended to punish the aggravated sexual assault under § 22.021(f). Furthermore, the presumption of regularity requires that we indulge every presumption in favor of the regularity of the plea proceedings and trial court's documents in connection to Anthony's deferred adjudication and judgment.n14 Even if the finding is accurate, it has no support in the record.n15 There is no confession, stipulation, admission, or evidence in the record permitting the judge to find that the victim was three years old at the time of the assault. ¶ We reverse the court of appeals' judgment. Our conclusion on the deferred-adjudication order's propriety resolves Anthony's complaints asserted below. We strike from the trial court's judgment the finding that the victim was three years old and reform the judgment to reflect a finding that the victim "was younger than 14 years of age at the time of the offense." n19 We reinstate the trial court's judgment, as reformed.”
Anthony v. State, 494 S.W.3d 106 (Tex. Crim. App. 2016); published; No. PD-0290-15; 2016 Tex. Crim. App. LEXIS 94, 4-7 (Tex. Crim. App. June 15, 2016)

FAILURE TO ALLEGE FACTS THAT DETERMINE THE GRADE OR PUNISHMENT ATTACHED TO THE OFFENSE

"It is fundamental that a felony theft conviction cannot be sustained unless the value of the item alleged in the indictment is proved to be over $50.00. Ballinger v. State, Tex.Cr.App., 481 S.W.2d 421; McKnight v. State, Tex.Cr.App., 387 S.W.2d 662; [PAGE 423] Price v. State, 165 Tex. Crim. 326, 308 S.W.2d 47 (1957)."

Martin v. State, 491 S.W.2d 421, 422-423 (Tex. Crim. App. 1973).

An indictment is fundamentally defective if the indictment fails to allege sufficient facts so that the range of punishment for the offense can be determined upon conviction for the offense.

Benoit v. State, 561 S.W.2d 810, 814-815 (Tex. Crim. App. 1977)

Benoit v. State, 561 S.W.2d 810, 814-815 (Tex. Crim. App. 1977). "Reliance was had in the Wilson decision upon the case of Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). In Standley an indictment failed to allege whether the offense of conversion by bailee was under the value of $ 50, or $ 50 and over. The effect of not alleging the value was to place the appellant in the position of not having notice as to whether he was being charged with a felony or misdemeanor. ¶ In Standley this court stated: "It is well established that the value of the property must be alleged if it affects penalty. 5 Branch's Ann.P.C., 2d ed., Sec. 2674, p. 120."In 30 Tex.Jur.2d, Indictment and Information, Sec. 38, p. 604, it is written: "'An indictment or information should allege every fact which may affect the degree or kind of punishment. A prior conviction must be alleged where a higher penalty is sought by reason of such conviction; the value of property must be stated where it is made the basis of punishment; and the injury done to the owner of property must be averred where the amount of injury is an essential element in the punishment.' (Emphasis Supplied) ¶ "In Hawkins v. State, 383 S.W.2d 416 (Tex.Cr.App.1964), this court said in a prosecution under Article 1429, Sec. 1, Vernon's Ann.P.C.: "'Without such an allegation the punishment cannot be determined.' See also Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47 (1957), and cases cited."It is clear from what has been said that the indictment in the instant case is fundamentally defective for the failure to allege value. The indictment omits a necessary element of the offense attempted to be alleged, does not show whether it was a misdemeanor or felony, and there is no way to determine from the face of the indictment if the District Court of Lippscomb (sic) County had jurisdiction of the offense sought to be alleged. We conclude that the judgment of the conviction based thereupon is void, rather than voidable." ¶ In Tave v. State, 546 S.W.2d 317 (Tex.Cr.App.1977), it was held that information charging the offense of driving while license suspended was fatally defective for failing to allege whether the operator's license was suspended under the provisions of Article 6701h (Safety Responsibility Act) or under Article 6687b, § 22(b), providing for suspension of an operator's license for numerous reasons. It was essential that the proper statute be pled because the statutes carried different penalties. ¶ A similar contention was raised by the defendant in Bailey v. State, 543 S.W.2d 653 (Tex.Cr.App.1976), where he asserted that the indictment charging him with possession of a controlled substance was defective for failure to state an offense over which the trial court had jurisdiction. His premise was based on the fact that the indictment did not state what penalty group the alleged controlled substance was listed under in § 4.04 of Article 4476-15, supra. ¶ The defendant in Bailey was charged with possession of lysergic acid diethylimide, which was only one penalty grade and one punishment. We observed that: ". . . Possession of any amount of this substance is a felony of the second degree. Our situation is distinguishable from those cases where the amount of the substance possessed by the accused determines whether the offense is a felony or a misdemeanor. . . ." (Emphasis supplied.) ¶ We noted, "(t)he trial court had jurisdiction over the offense charged in the indictment. The failure of the indictment to specify the penalty group (was) not a defect in (that) case." ¶ The present case, unlike Bailey, involves a controlled substance included in three separate penalty groups based upon the amount possessed. Further, the three separate punishments provided for delivery [PAGE 815] include that of both felony and misdemeanor. The failure to allege in the indictment the amount involved or penalty group n3 so as to reflect what punishment is involved, whether the offense is a misdemeanor or felony, or whether the District Court had jurisdiction renders the indictment fatally defective. Cf. Wilson v. State, supra; Mears v. State, supra; Standley v. State, supra; Bailey v. State, supra. Indeed, the trial court was probably even misled by the ambiguity of the possible offense alleged by the indictment for delivery of codeine when he admonished appellant the range of punishment was 2 to 10 years or that of a Penalty Group 3 delivery.

FOOTNOTES

n3 It is observed that in Morrison and Blackwell's New Texas Penal Code Forms (Texas Controlled Substances Act), § 4.03, it is recommended that in alleging unlawful delivery of a controlled substance that the penalty group in which the controlled substance alleged falls be pled in the indictment. If that had been done in the instant case the question raised would have been avoided.

The judgments are reversed and prosecutions ordered dismissed.
Benoit v. State, 561 S.W.2d 810, 814-815 (Tex. Crim. App. 1977)

SUMMARY OF THE STATUTES REGARDING PROBATION BY THE COURT OR JURY FOR A SEXUAL OFFENSE

REGULAR COURT PROBATION AFTER CONVICTION. Under Article 42A.054 C.C.P., the Court does not have the authority to grant regular probation after conviction for 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).

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.”

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DEFERRED ADJUDICATION OF GUILT. Under Article 42A.102(b) C.C.P., the Court has the authority to grant a deferred adjudication for the following sexual offenses: Section 21.11 [Indecency with a child], Section 22.011 [Sexual Assault], or Section 22.021 [Aggravated Sexual Assault], Penal Code, regardless of the age of the victim 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.

Under Article 42A.102(b)(2) C.C.P., the Court does not have the authority to grant a deferred adjudication of guilt for the offenses of Section 21.11 [Indecency with a child], Section 22.011 [Sexual Assault], or Section 22.021 [Aggravated Sexual Assault], if the defendant has been previously placed on probation for any of those sexual offense.

Under Article 42A.102(b)(2) C.C.P., the Court does not have the authority to grant a deferred adjudication of guilt for the offense of aggravated sexual assault under Section 22.021 (f) Penal Code if the victim was 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.

Under Article 42A.102(b)(3) C.C.P., the Court does not have the authority to grant a deferred adjudication of guilt for the offense of continuous sexual abuse of a young child or children under Section 22.021 Penal Code.

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Article 42A.102(a) 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.

Article 42A.102 (b)(2) and (3) C.C.P. provide:

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

(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;

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JURY PROBATION. A defendant is not eligible for probation by a jury as provided by Article 42A.056 C.C.P. for the sexual offenses of sexual assault under Section 22.011 Penal Code or aggravated sexual assault under Section 22.021 if the victim of the offense was younger than 14 years of age at the time the offense was committed. A defendant is not eligible for continuous sexual abuse of a young child or children under Section 21.02 Penal Code because the minimum sentence is 25 years in prison. Article 42A.056(1) C.C.P. provides that a defendant is not eligible for jury probation if the defendant “(1) is sentenced to a term of imprisonment that exceeds 10 years.

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

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

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];

(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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ARTICLE 42A.053 C.C.P. EFFECTIVE SEPTEMBER 1, 2019 - AUTHORITY OF THE COURT TO GRANT REGULAR COMMUNITY SUPERVISION - MAXIMUM AND MINIMUM PERIODS OF COMMUNITY SUPERVISION - LIMITATION ON JUDGE ORDERED COMMUNITY SUPERVISION - NO COMMUNITY SUPERVISION FOR A SENTENCE THAT EXCEEDS 10 YEARS

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.

(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 MINIMUM 5 YEAR PERIOD OF COMMUNITY SUPERVISION AND REQUIRING CHILD SAFETY ZONE AS A CONDITION OF COMMUNITY SUPERVISION

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(b) C.C.P. - CLEAR LIST OF OFFENSES REQUIRING MINIMUM 5 YEAR PERIOD OF PROBATION

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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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

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

(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:

(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:

(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

(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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ARTICLE 42A.453(b) C.C.P. LISTED OFFENSES REQUIRING 5 YEAR MINIMUM PERIOD OF COMMUNITY SUPERVISION AND 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:

(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;

(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(b) C.C.P. - CLEAR LIST OF OFFENSES REQUIRING 5 YEAR MINIMUM PERIOD OF COMMUNITY SUPERVISION

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.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