PUNISHMENT RANGES, ENHANCEMENT OF PUNISHMENT FOR A STATE JAIL FELONY OFFENSE, REPEAT AND HABITUAL ENHANCEMENT OF PUNISHMENT, STACKING SENTENCES AND CONSOLIDATION OF SENTENCES AND STACKING, LIMITATION ON COURT ORDERED PROBATION, LIMITATION ON JURY GRANTED PROBATION, AND LAW OF PAROLE

BY

RALPH PETTY

ATTORNEY AT LAW

MIDLAND COUNTY, TEXAS

TABLE OF CONTENTS

PUNISHMENT RANGES

Sec. 12.31. Capital Felony.

 

Sec. 12.31. Capital Felony

(a) An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole or by death. An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:

(1) life, if the individual committed the offense when younger than 18 years of age; or

(2) life without parole, if the individual committed the offense when 18 years of age or older.

(b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that:

(1) a sentence of life imprisonment is mandatory on conviction of the capital felony, if the individual committed the offense when younger than 18 years of age; or

(2) a sentence of life imprisonment without parole is mandatory on conviction of the capital felony, if the individual committed the offense when 18 years of age or older.

Sec. 12.32. First Degree Felony Punishment

Sec. 12.32. First Degree Felony Punishment

(a) An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.

Sec. 12.33. Second Degree Felony Punishment

Sec. 12.33. Second Degree Felony Punishment.

(a) An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.

Sec. 12.34. Third Degree Felony Punishment

Sec. 12.34. Third Degree Felony Punishment

(a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.

 

Sec. 12.35. State Jail Felony Punishment

Sec. 12.35. State Jail Felony Punishment

(a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.

(b) In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.

(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:

(1) a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or

(2) the individual has previously been finally convicted of any felony:

(A) under Section 20A.03 or 21.02 or listed in Article 42A.054(a), Code of Criminal Procedure; or

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

 

SECTION 12.425 PENAL CODE - ENHANCEMENT OF PUNISHMENT FOR A NON-AGGRAVATED STATE JAIL FELONY OFFENSE UNDER SECTION 12.35(a) PENAL CODE TO A THIRD DEGREE FELONY BY TWO PRIOR NON-SEQUENTIAL STATE JAIL FELONIES OR TO A SECOND DEGREE FELONY BY TWO PRIOR SEQUENTIAL FELONY CONVICTIONS

SECTION 12.425 PENAL CODE - Penalties for Repeat and Habitual Felony Offenders on Trial for State Jail Felony

(a) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the third degree. [Note: State jail felony convictions need not be sequential.]

(b) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies other than a state jail felony punishable under Section 12.35(a), and the second previous felony conviction [middle conviction] is for an offense that occurred subsequent to the first previous conviction [oldest conviction] having become final, on conviction the defendant shall be punished for a felony of the second degree. [Note: The two prior felony convictions must be sequential.]

(c) If it is shown on the trial of a state jail felony for which punishment may be enhanced under Section 12.35(c) that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.

Tex. Penal Code § 12.425

Sec. 12.41. Classification of Offenses Outside This Code

Sec. 12.41. Classification of Offenses Outside This Code

For purposes of this subchapter, any conviction not obtained from a prosecution under this code shall be classified as follows:

(1) “felony of the third degree” if imprisonment in the Texas Department of Criminal Justice or another penitentiary is affixed to the offense as a possible punishment;

(2) “Class B misdemeanor” if the offense is not a felony and confinement in a jail is affixed to the offense as a possible punishment;

(3) “Class C misdemeanor” if the offense is punishable by fine only.

SECTION 12.42 PENAL CODE – REPEAT AND HABITUAL OFFENDER PUNISHMENT

 

Section 12.42 Penal Code - Penalties for Repeat and Habitual Felony Offenders on Trial for First, Second, or Third Degree Felony

Section 12.42 Penal Code

(a) Except as provided by Subsection (c)(2), if it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.

(b) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the first degree.

(c)

(1) If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.

(2) Notwithstanding Subdivision (1), a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life if:

(A) the defendant is convicted of an offense:

(i) under Section 20A.02(a)(7) or (8)[trafficking a child], 21.11(a)(1)[indecency with a child by contact], 22.021 [aggravated sexual assault], or 22.011 [sexual assault], Penal Code;

(ii) under Section 20.04(a)(4) [aggravated kidnapping], Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or

(iii) under Section 30.02 [burglary], Penal Code, punishable under Subsection (d) of that section [burglary of a habitation with the intent to commit or attempting to commit or committing a felony other than theft], if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11 [sexual assault], Penal Code; and

(B) the defendant has been previously convicted of an offense:

(i) under Section 43.25 [sexual performance b a child] or 43.26 [child pornography], Penal Code, or an offense under Section 43.23 [obscenity], Penal Code, punishable under Subsection (h) of that section;

(ii) under Section 20A.02(a)(7) or (8) [trafficking a child], 21.02 [continuous sexual abuse of young child], 21.11 [indecency with a child], 22.011 [sexual assault], 22.021 [aggravated sexual assault], or 25.02 [incest], Penal Code;

(iii) under Section 20.04(a)(4)[aggravated kidnapping], Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;

(iv) under 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 described by Subparagraph (ii) or (iii); or

(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).

(3) Section 3 held unconstitutional in Kennedy v. Louisiana, 554 U.S. 407 (2008). Notwithstanding Subdivision (1) or (2), a defendant shall be punished for a capital felony if it is shown on the trial of an offense under Section 22.021 [aggravated sexual assault] otherwise punishable under Subsection (f) [victim is younger than six or victim is younger than 14 and defendant caused serious bodily injury to victim] of that section that the defendant has previously been finally convicted of:

(A) an offense under Section 22.021 that was committed against a victim described by Section 22.021(f)(1) or was committed against a victim described by Section 22.021(f)(2) and in a manner described by Section 22.021(a)(2)(A); or

(B) an offense that was committed under the laws of another state that:

(i) contains elements that are substantially similar to the elements of an offense under Section 22.021; and

(ii) was committed against a victim described by Section 22.021(f)(1) or was committed against a victim described by Section 22.021(f)(2) and in a manner substantially similar to a manner described by Section 22.021(a)(2)(A).

(4) Notwithstanding Subdivision (1) or (2), and except as provided by Subdivision (3) for the trial of an offense under Section 22.021 as described by that subdivision, a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole if it is shown on the trial of an offense under Section 20A.03 [continuous trafficking of persons] or of a sexually violent offense, committed by the defendant on or after the defendant’s 18th birthday, that the defendant has previously been finally convicted of:

(A) an offense under Section 20A.03 or of a sexually violent offense; or

(B) an offense that was committed under the laws of another state and that contains elements that are substantially similar to the elements of an offense under Section 20A.03 or of a sexually violent offense.

(5) A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under Subdivision (2).

(d) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this subsection.

(e) [Repealed by Acts 2011, 82nd Leg., ch. 834 (H.B. 3384), § 6, effective September 1, 2011.]

(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.

(g) For the purposes of Subsection (c)(2):

(1) a defendant has been previously convicted of an offense listed under Subsection (c)(2)(B) if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and

(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed under Subsection (c)(2)(B) is a conviction of an offense listed under Subsection (c)(2)(B).

(h) In this section, “sexually violent offense” means an offense:

(1) described by Article 62.001(6), Code of Criminal Procedure; and

(2) for which an affirmative finding has been entered under Article 42.015(b) or 42A.105(a), Code of Criminal Procedure, for an offense other than an offense under Section 21.02 or 22.021.

Tex. Penal Code § 12.42

DEADLY WEAPON DURING THE COMMISSION OF A CRIME AND SECTION 42A.054 C.C.P. CRIMINAL OFFENSES

Article 42A.054 C.C.P. - Limitation on Judge-Ordered Community Supervision. [Effective until September 1, 2019]

Article 42A.054 C.C.P. - Limitation on Judge-Ordered Community Supervision. [Effective until September 1, 2019]

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

(1) Section 15.03, Penal Code, 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 21.11(a)(1), Penal Code (Indecency with a Child);

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

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

(9) 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;

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

(11) 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, 21.11, 22.011, 22.021, or 25.02, Penal Code;

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

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

(14) 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 [authority of the court to grant probation after conviction] 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.

Tex. Code Crim. Proc. Art. 42A.054

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DEADLY WEAPON - SECTION 1.07(a)(17) (A) & (B) PENAL CODE (DEFINITIONS)

"Deadly weapon means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

 

FIREARM - SECTION 46.01(3) PENAL CODE (WEAPONS)

The term "deadly weapon" means a firearm. A "firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.

OTHER DEFINITIONS RELEVANT TO DEADLY WEAPON

Section 46.01(3) Penal Code - Firearm

“A "firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.”

Section 107(a) 46) Penal Code - Serious bodily Injury

“"Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Section 107(a)(8) Penal Code - Bodily Injury

“"Bodily injury" means physical pain, illness, or any impairment of physical condition.”

 

ARTICLE 42.12 Section 3g(a)(2) C.C.P. [now Article 42A.054(b)(2)(c) & (d) C.C.P.] - AFFIRMATIVE FINDING IN THE JUDGMENT OF DEADLY WEAPON DURING COMMISSION OF THE OFFENSE

ARTICLE 42.12 Section 3g(a)(2) C.C.P. [now Article 42A.054(b)(2)(c) & (d) C.C.P.] - AFFIRMATIVE FINDING IN THE JUDGMENT OF DEADLY WEAPON DURING COMMISSION OF THE OFFENSE

(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. [c] On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the Court. [d] On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment.”

CUMULATIVE AND CONCURRENT SENTENCES

 

 

Article 21.24 C.C.P. - JOINDER OF OFFENSES OCCURRING IN SAME CRIMINAL EPISODE IN ONE INDICTMENT - PLEADING

Article 21.24 C.C.P.: Joinder of Offenses

(a) Two or more offenses may be joined in a single indictment, information, or complaint with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code.

(b) A count may contain as many separate paragraphs charging the same offense as necessary, but no paragraph may charge more than one offense.

(c) A count is sufficient if any one of its paragraphs is sufficient. An indictment, information, or complaint is sufficient if any one of its counts is sufficient.

ARTICLE 42.08 CODE OF CRIMINAL PROCEDURE - CUMULATIVE OR CONCURRENT SENTENCES

Article 42.08 Code of Criminal Procedure - CUMULATIVE OR CONCURRENT SENTENCE

(a) When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article in the discretion of the Court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be according; provided however, that the cumulative total of suspended sentences in felony cases shall not exceed 10 years, and the cumulative total of suspended sentences in misdemeanor cases shall not exceed the maximum period of confinement applicable to the misdemeanor offenses, though in no event more than three years, including extensions of periods of community supervision under Section 22, Article 42.12, of this code, if none of the offenses are offenses under Chapter 49, Penal Code, or four years, including extensions, if any of the offenses are offenses under Chapter 49, Penal Code.

(b) If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division off the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent to commence immediately on completion of the sentence for the original offense.

(c) If a defendant has been convicted in two or more cases and the court suspends the imposition of the sentence in one of the cases, the court may not order a sentence of confinement to commence on the completion of a suspended sentence for an offense.

STACKING PRISON SENTENCES TRIED IN A SINGLE CRIMINAL ACTION - SECTION 3.03 PENAL CODE

STACKING OF PRISON SENTENCES TRIED IN A SINGLE CRIMINAL ACTION - SECTION 3.03 PENAL CODE

Section 3.03. Penal Code - Sentences for Offenses Arising out of Same Criminal Episode

(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.

(b) [Effective September 1, 1997] If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:

(1) an offense:

(A) under Section 49.07 [intoxication assault] or 49.08 [intoxication manslaughter]; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense under Section 49.08 [intoxication manslaughter]; or

(2) an offense:

(A) under Section 33.021 [online solicitation of a minor]or an offense 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], 25.02 [prohibited sexual conduct (incest)], or 43.25 [sexual performance by a child] committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section.

(3) [Effective Date Unknown] an offense:

(A) under Section 21.15 [Improper Photography or Visual Recording] or 43.26 [Possession or Promotion of Child Pornography], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections;

(4) an offense for which the judgment in the case contains an affirmative finding under Article 42.0197, Code of Criminal Procedure;

(5) [Effective September 1, 2011] an offense:

(A) under Section 20A.02 [Trafficking of Persons] or 43.05 [Compelling Prostitution], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections;

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections; or

(6) Effective September 1, 2013] an offense:

(A) under Section 22.04(a)(1) [Injury to a Child, elderly Individual or Disabled Individual (causing serious bodily injury] or (2) or Section 22.04(a-1)(1) or (2) that is punishable as a felony of the first degree, regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) and punishable as described by that paragraph, regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section.

(b-1) Subsection (b)(4) does not apply to a defendant whose case was transferred to the court under Section 54.02, Family

Tex. Penal Code § 3.03

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CONSOLIDATION AND JOINDER OF OFFENSES IN A SINGLE CRIMINAL ACTION AND STACKING OF SENTENCES

Section 3.01 Penal Code - Definitions

In this chapter, "criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses.

Section 3.02 Penal Code: Consolidation and Joinder of Prosecutions

(a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.

(b) When a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the state shall file written notice of the action not less than 30 days prior to the trial.

(c) If a judgment of guilt is reversed, set aside, or vacated, and a new trial ordered, the state may not prosecute in a single criminal action in the new trial any offense not joined in the former prosecution unless evidence to establish probable guilt for that offense was not known to the appropriate prosecuting official at the time the first prosecution commenced.

Section 3.03. Penal Code - Sentences for Offenses Arising out of Same Criminal Episode

Section 3.03. Penal Code - Sentences for Offenses Arising out of Same Criminal Episode

(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.

(b) [Effective September 1, 1997] If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:

(1) an offense:

(A) under Section 49.07 [intoxication assault] or 49.08 [intoxication manslaughter]; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense under Section 49.08 [intoxication manslaughter]; or

(2) an offense:

(A) under Section 33.021 [online solicitation of a minor]or an offense 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], 25.02 [prohibited sexual conduct (incest)], or 43.25 [sexual performance by a child] committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section.

(3) [Effective Date Unknown] an offense:

(A) under Section 21.15 [Improper Photography or Visual Recording] or 43.26 [Possession or Promotion of Child Pornography], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections;

(4) an offense for which the judgment in the case contains an affirmative finding under Article 42.0197, Code of Criminal Procedure;

(5) [Effective September 1, 2011] an offense:

(A) under Section 20A.02 [Trafficking of Persons] or 43.05 [Compelling Prostitution], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections;

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections; or

(6) Effective September 1, 2013] an offense:

(A) under Section 22.04(a)(1) [Injury to a Child, elderly Individual or Disabled Individual (causing serious bodily injury] or (2) or Section 22.04(a-1)(1) or (2) that is punishable as a felony of the first degree, regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) and punishable as described by that paragraph, regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section.

(b-1) Subsection (b)(4) does not apply to a defendant whose case was transferred to the court under Section 54.02, Family

Tex. Penal Code § 3.03

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Section 3.04 Penal Code: Severance

(a) Whenever two or more offenses have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to a severance of the offenses.

(b) In the event of severance under this section, the provisions of Section do not apply, and the court in its discretion may order the sentences to run either concurrently or consecutively.

(c) The right to severance under this section does not apply to a prosecution for offenses described by Section 3.03(b)(2) unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses, in which event the judge may order the offenses to be tried separately or may order other relief as justice requires.

CONSOLIDATION AND JOINER OF OFFENSES FOR TRIAL AT THE REQUEST OF THE DEFENSE - THE SENTENCES CAN BE STACKED

Where a defendant was charged in two indictments with two separate and distinct offense arising out of one transaction, and the cases were consolidated for trial at the request of the defendant, the court had the authority to run the sentences consecutively. "Appellant moved to consolidate his cases in one trial. The trial court granted his request. Subsequently, a jury convicted appellant of both assaults and assessed punishment for each offense at nine years confinement. The trial court noted in its judgment, and admonished the appellant in open court, the nine year sentence in cause no. 15,315-B would begin after the completion of the sentence in cause no. 15,313-B."

Phillips v. State, 787 S.W.2d 391, 393 (Tex. Crim. App. 1990)

ARTICLE 42A.053 C.C.P. - AUTHORITY OF THE COURT TO GRANT COMMUNITY SUPERVISION AND MAXIMUM AND MINIMUM PERIODS OF COMMUNITY SUPERVISION FOR FELONY OFFENSES

ARTICLE 42A.053 C.C.P. - AUTHORITY OF THE COURT TO GRANT COMMUNITY SUPERVISION - MAXIMUM AND MINIMUM PERIODS OF COMMUNITY SUPERVISION FOR FELONY OFFENSES - LIMITATION ON JUDGE ORDERED COMMUNITY SUPERVISION - NO COMMUNITY SUPERVISION FOR A SENTENCE THAT EXCEEDS 10 YEARS

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.054 C.C.P. OFFENSES - FORMER ARTICLE 42.12 SECTION 3g C.C.P.(a)(1) C.C.P. - LIMITATION ON COURT ORDERED (REGULAR) COMMUNITY SUPERVISION FOR THE LISTED OFFENSES & RELEASE ON PAROLE AFTER ONLY AFTER SERVING 1/2 OF SENTENCE DAY FOR DAY

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

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

NOTE: The Court does not have the authority to grant probation after conviction for the offenses listed in Article 42A.054 C.C.P. - Limitation on Judge-Ordered Community Supervision. Those offenses include murder, aggravated robbery, aggravated kidnapping, sexual assault, aggravated sexual assault, compelling prostitution, sexual performance of a child and others or any offense in which the defendant used or exhibited a deadly during the commission of the offense or  was a party to the offense and knew that a deadly weapon would be used or exhibited. The offenses of intoxication manslaughter, manslaughter and criminally negligent homicide are not included in the list of offenses for which the court cannot grant probation after conviction.

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.

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.

Note: Article 42A.701 (g) C.C.P. provides that judicial clemency does not apply to certain offenses:

(g) This section does not apply to a defendant convicted of:

(1) an offense under Sections 49.04-49.08 [DWI offenses], Penal Code,

(2) an offense for which on conviction registration as a sex offender is required under Chapter 62;

(3) a felony described by Article 42A.054 [Former Article 42.12 Section 3g offenses].

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Article 42A.054 C.C.P. - Limitation on Judge-Ordered Community Supervision.

(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 [criminal solicitation], Penal Code, 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 21.11(a)(1), Penal Code (Indecency with a Child by contact);

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

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

(9) 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;

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

(11) 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, 21.11, 22.011, 22.021, or 25.02, Penal Code;

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

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

(14) 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.

Tex. Code Crim. Proc. Art. 42A.054

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ARTICLE 42A.055 & 42A.056 C.C.P. - ELIGIBILITY FOR JURY PROBATION AND NO JURY PROBATION FOR CERTAIN OFFENSES - EFFECTIVE JANUARY 1, 2017

ELIGIBILITY FOR PROBATION BY A JURY UNDER ARTICLE 42A.055 C.C.P. - NO JURY PROBATION FOR A A FELONY OFFENSE LISTED BY ARTICLE 42A.056 C.C.P. AND FORMER ARTICLE 42.12 SECTION 4(d) C.C.P.

See Article 42A.056 C.C.P. - Limitation on Jury Recommended Community Supervision effective January 1, 2017 - previously effective September 1, 2007 under Article 42.12 Section 4 C.C.P. - Jury recommended Community Supervision

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

(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 JANUARY 1, 2017

Article 42A.056 C.C.P. - Limitation on Jury Recommended Community Supervision effective January 1, 2017

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 [certain state jail felony offenses];

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

(4) is convicted of an offense under Section 21.11(a)(1) [indecency with a child by contact], 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], 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

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

 

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

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

(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 [Aggravated Sexual Assault], Penal Code, that is punishable under Subsection (f) of that section is not eligible for release on parole.

(b) An inmate serving a life sentence under Section 12.31(a)(1), Penal Code, 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) 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)

(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;

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

(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) 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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