Download Learning Objectives - Texas Municipal Courts Education Center

AFFIRMATIVE FINDINGS AND ENHANCEMENT
By
Dana D. Jacobson, Esq.
Presiding Judge, Municipal Court of the City of Fair Oaks Ranch; City
Prosecutor, City of Boerne; Assistant City Attorney, City of Grey Forest
1. Enhancement: What is it? Enhancement is a creature of statute, but
is not defined by statute. However, generally when we speak of
enhancement, we refer to increasing the punishment for a particular
offense because of circumstances existing at the time of the
commission of the offense, whether the circumstances are 1) the
manner in which the offense was committed, or 2) the defendant’s
criminal history at the time the offense was committed. Note that
these are not mutually exclusive: prior convictions can be used to
enhance punishment in the same proceeding where the offense was
committed in a manner or under circumstances which themselves
provide for enhanced punishment. Courts have upheld enhancement
provisions against all sorts of challenge, including claims of double
jeopardy, ex post facto laws, cruel and unusual punishment, due
process violation, unequal protection, and infringement of privileges
and immunities. Spencer v. Texas, 385 U.S. 554; 87 S. Ct. 648; 17 L.
Ed. 2d 606. NOTE: the scope of this paper is intended to address only
offenses and situations that would generally require a determination
by a municipal court.
a. Notice. Before trial, the state must notify a defendant that it
intends to seek an enhanced penalty…The allegations in the
enhancement paragraphs do not have to be as specific as the
allegations of the offense for which the defendant is on trial. 1-2
Texas Sentencing § 2.1 Copyright 2007, Matthew Bender &
Company, Inc. “In the case of these enhanced offenses, the
defendant is entitled to both notice that the enhancement is
being sought and a factual determination of the prior
conviction.” TMCEC Municipal Judge’s Book, citing Palmer v.
State, 229 S.W.2d 174 (Tex. Crim. App. 1950) (sale o’ whisky in
a dry county).
b. Standard of Proof: The state must prove each and every
element of an offense beyond a reasonable doubt; however, the
United States Supreme Court has held that prior convictions
are a sentencing factor, not a crime in themselves, and need
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
1
only be proved by a preponderance of the evidence.
Almendarez-Torres v. United States, 523 U.S. 224.
c. To what offenses does enhancement apply? Enhancement is
intended to both deter and punish. It applies equally to a crime
that is a repetition of prior violations by the defendant and to a
crime the manner of commission of which is, or the
circumstance under which it is committed are, more flagrant or
heinous that a “normal” offense of the same type.
2. Enhanced punishment for subsequent offenses under the Penal Code.
The more usual circumstance for enhancement of punishment is that
in which the defendant has been convicted previously of the same or a
similar offense – i.e., recidivism.
a. The gift that keeps on giving: Penal Code §12.46 states that a
prior conviction can be used, inter alia, over and over again for
enhancement of punishment for a subsequent offense.
b. Disorderly Conduct & Public Intoxication (Art 42.12, §15A and
PC §12.43(c) and (d)(Habitual Misdemeanor)) – if the defendant
has been previously convicted 3 or more times for any
combination of disorderly conduct and public intoxication
where the offenses were committed within the previous 24
months, the offense may be punished as a Class B
misdemeanor.
3. Enhanced punishments for particular offenses
a. Alcohol-related offenses and minors – Under Alcoholic Beverage
Code §106.071, a 17-year-old (“a minor who is not a child”) with
two prior convictions for listed offenses can be fined $250$2000 and be jailed for up to 180 days, an increase from the
$500 fine and no confinement that the underlying offense
carries. The alcohol-related community service and alcohol
awareness class are available for a subsequent offense as well,
and the community service hours increase with the number of
convictions. If the offender is younger than 17 with two prior
convictions, there is no enhanced punishment; however, the
Municipal Court still has to waive jurisdiction to the juvenile
court (Family Code §51.08).
b. Assault against an elderly or disabled victim (Penal Code
§22.01(c)(1)) – If the victim was chosen because he or she was
elderly or disabled, the punishment for simple assault is
enhanced from Class C misdemeanor to Class A.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
2
c. Assault against a sports participant by a non-participant (Penal
Code §22.01(c)(2)) – the penalty for a spectator or other
nonparticipant assaulting a referee, player or staff member is
enhanced from Class C misdemeanor to Class B.
4. Enhanced punishment for subsequent offense outside the Penal Code
(Penal Code §12.43(d)) – many offenses that are not crimes per se are
punished under separate statutes. If a separate punishment is set
forth in a statute, the default provisions of Penal Code §12.43(d) do
not apply.
a. Insurance (Transportation Code §601.051 and §601.191) – on a
second or subsequent conviction of operating a vehicle in
violation of the financial responsibility requirement, the
defendant will be assessed a fine of between $350 and $1000,
up from a range of $175 to $350 for a first conviction.
b. Disabled parking (Transportation Code §681.011 and
§684.011) – the most graduated statute:
i. a first offense gets the violator $200-$500;
ii. a second offense boosts the fine range to $300-$600;
iii. a third offense adds to the $300-$600 fine range a
requirement for 10 to 20 hours of community service;
iv. a fourth offense bumps the fine range to $500-$100 and
adds 20 to 50 hours of community service;
v. a fifth offense gets the offender a $1000 fine and 50 hours
of community service. Interestingly, there’s no “or more”
language on this one, so presumably once you’ve gotten
your fifth conviction, either you’re home free or you start
over…?
c. Overweight truck violations (Transportation Code §621.506 and
507)
i. first-time penalties vary depending on the axle weight,
tandem axle weight or gross weight of the vehicle. For a
second conviction within a year for the same offense (axle
and axle, tandem and tandem, etc.), the fine doubles.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
3
ii. Extra credit: This statute requires that the municipal
judge report every violation promptly to the DPS.
d. Motor Fuel Theft less than $50 (Transportation Code §521.349)
– automatic driver’s license suspension or denial with a second
or subsequent offense. Requires affirmative findings (discussed
below). Query: whether we’re going to see more Class B
misdemeanors with the recent increases in the price of a gallon
of gas…
e. Failure to Attend School (Family Code §54.021(b)) – a
subsequent offense actually constitutes violation of a court
order (Code of Criminal Procedure Art 45.050; Education Code
§25.094(d)), and the court can refer the offender to juvenile
court or retain jurisdiction and:
i. Hold the child in contempt and impose a fine of not more
than $500, and/or
ii. Order DPS to suspend the driver’s license or permit, as
appropriate, or deny issuance of a driver’s license or
permit until the child discharges his/her obligation to the
court.
5. Municipal Court procedure for dealing with an offense that permits
enhancement.
a. When considered by a jury, enhancement findings are either
“true” or “not true”.
6. Affirmative findings
a.
What are they? Affirmative findings are those specific findings
of the finder of fact (whether judge or jury) that support an
enhanced punishment or other action by the court or by the
state. Without the requisite affirmative finding, the action is
not available to the court or the state. Affirmative findings are a
creature of statute, instituted by the Legislature to support
enhanced punishment or trigger additional administrative steps
or consequences. Affirmative finding law emerged as a child of
Article 42.12 of the Code of Criminal Procedure. It is solely the
result of the insertion of the word "affirmative" in that statute,
and has no link to any concept of notice. In fact, nothing in
Article 42.12 or in the Polk line of cases prohibits an entry of an
affirmative finding without prior notice to the accused. An
affirmative finding is just that: a finding that is affirmatively
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
4
made. This can be accomplished by: (1) A jury's answer to a
special issue, or (2) by a finding of "guilty as charged in the
indictment". Ex parte Beck, 769 S.W.2d 525 (Tex. Crim. App.
1989)
b. To what offenses do affirmative findings apply?
i. Motor Fuel Theft (Code of Criminal Procedure Art. 42.019
and Penal Code §31.03(e)(1), and Transportation Code
§521.349). To support future enhancement, the
judgment must contain affirmative findings that the
person: 1) pumped the gas and 2) drove off without
paying. In order to use the prior conviction for
enhancement, the subsequent judgment requires an
affirmative finding of a previous conviction for the same
offense.
ii. Family Violence (Code of Criminal Procedure Art. 42.01,
§5 and Art 42.013)
1. By enacting Article 42.013, the legislature sought to
simplify the enhancement of punishment for family
violence repeat offenders. State v. Eakins, 71
S.W.3d 443, 444 (Tex. App.--Austin 2002, no pet.).
Before Article 42.013's enactment, extrinsic
evidence was the only method of proving that a
previous conviction for assault was against a family
member. Id. An affirmative Article 42.013 finding of
family violence eliminates the need to use extrinsic
evidence to enhance a subsequent conviction for
family violence. Goodwin v. State, 91 S.W.3d 912,
919 (Tex. App.--Fort Worth 2002, no pet.). This
simplifies the enhancement process for possible
future assaults against a family member and
promotes judicial economy. Id. Rodriguez v. State,
2006 Tex. App. (unpublished opinion)
2. What about simple assault when committed against
a spouse (Penal Code §22.01(a)(2) and (3))? It’s a
Class C misdemeanor. Does the judge have a duty
to make an affirmative finding of family violence
and enter it in the judgment to support a future
enhancement under §22.01(b)(2), making a simple
assault under §22.01(a)(1) a third degree felony if
committed against a family member with a finding
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
5
of a previous conviction for family violence? Code
of Criminal Procedure Art. 42.013 says yes.
iii. Bias or Prejudice (CCP Art. 42.01, §6 and Art. 42.014)
(Pen.C. §12.47). Applies to simple assault under Penal
Code §22.01(a) and requires one step enhancement of
punishment if an affirmative finding is made “that the
defendant intentionally selected the person against whom
the offense was committed or intentionally selected
property damaged or affected as a result of the offense
because of the defendant's bias or prejudice against a
group identified by race, color, disability, religion,
national origin or ancestry, age, gender, or sexual
preference.” CCP Art. 42.014(a).
7. Elements of a judgment as they relate to affirmative findings and
enhanced punishment. The judge must not only make an affirmative
finding of an element that justifies enhancement of a sentence, the
judge must also enter the affirmative finding as a part of the
judgment.
a. 42.01 Judgment statute – Sections 5-8 specifically state that in
addition to the previously listed elements of a valid judgment,
the judgment “should reflect affirmative findings entered
pursuant to Article [42.013/014/015/017] of this code”.
b. 45.041 Judgment provision
8. Ethical issues involved with using knowledge of prior proceedings to
enhance punishment. Many attorneys who serve as municipal court
judges also serve in different jurisdictions as municipal prosecutors.
The issue of what to do when the judge knows of prior convictions,
Deferred Disposition, etc. of a defendant before him, but the
prosecutor doesn’t make reference to it, brings up a number of
considerations.
a. Texas Rule of Evidence 201 – Judicial Notice. Governs judicial
notice of adjudicative facts. Does this include prior convictions
in another court?
i. Wilson v. State, 677 S.W.2d 518 (Tex.Crim.App. 1984): Of
course, a trial court may take judicial notice of its own
orders, records, and judgments rendered in cases
involving the same subject matter and between practically
the same parties. 1 Ray, Texas Practice, Sec. 186.
However, one trial court generally lacks the power to take
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
6
judicial notice of the records or documents that might be
on file in another trial court…[no citing reference].
“…If the judge has personal knowledge of a fact not
judicially known, the proper way to make use of it is for
him to take the stand as a witness and testify to what he
knows." McCormick and Ray, Texas Law of Evidence, 2d
Ed., Vol. 1, at 172-173.
ii. Culverhouse v. State, 755 S.W.2d 856 (Tex.Crim.App.
1988) (Dissent): In 1 Texas Practice 195-196, Ray, Law of
Evidence (Third Edition), Section 152, the following is
pointed out: "It is well settled that the scope of the
exercise of the function of judicial notice is not
coextensive with the personal knowledge of the individual
judge. Personal knowledge is not judicial knowledge. The
judge may personally know a fact of which he cannot take
judicial notice."
iii. …so what’s the answer? Is a judgment in another court
properly the topic of judicial notice? Or does the
prosecutor have to 1)know about it, and 2)get it into
evidence?
b. Prior Convictions – Judge was Prosecutor. Brown v. State, 108
S.W.3d 905 - The trial judge in this case acted as prosecutor in
one of the prior convictions used for enhancement of the
penalty range in the instant case. 6th Circuit Court of Appeals
said acting as a prosecutor in a case introduced for
enhancement but not the same case as before the trial judge,
“does not establish a disqualification under TEX. CONST. art. V,
§ 11 or TEX. CODE CRIM. PROC. ANN. art. 30.01 that would
render a prior conviction useless for enhancement purposes
under McDonald. There is no disqualification under these
circumstances.”
c. Deferred Disposition. Not a prior conviction, so can it be used
for enhancement? There are specific references in Alcoholic
Beverage Code §106.04(d)(consumption), §106.041(h)(2)(driving
under the influence), and §106.071(f)(2)(general punishments
section) to the effect that deferred disposition is a conviction for
purposes of enhancement. And can it be the subject of judicial
notice? Note: an affirmative finding of 2 previous convictions of
DUI or consumption means the minor is not eligible for
deferred.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
7
CODE OF CRIMINAL PROCEDURE
CHAPTER 42. JUDGMENT AND SENTENCE
Art. 42.01. JUDGMENT. Sec. 1. A judgment is the written declaration of the
court signed by the trial judge and entered of record showing the conviction or acquittal
of the defendant. The sentence served shall be based on the information contained in
the judgment. The judgment shall reflect:
1. The title and number of the case;
2. That the case was called and the parties appeared, naming the attorney for
the state, the defendant, and the attorney for the defendant, or, where a defendant is
not represented by counsel, that the defendant knowingly, intelligently, and voluntarily
waived the right to representation by counsel;
3. The plea or pleas of the defendant to the offense charged;
4. Whether the case was tried before a jury or a jury was waived;
5. The submission of the evidence, if any;
6. In cases tried before a jury that the jury was charged by the court;
7. The verdict or verdicts of the jury or the finding or findings of the court;
8. In the event of a conviction that the defendant is adjudged guilty of the
offense as found by the verdict of the jury or the finding of the court, and that the
defendant be punished in accordance with the jury's verdict or the court's finding as to
the proper punishment;
9. In the event of conviction where death or any punishment is assessed that
the defendant be sentenced to death, a term of confinement or community supervision,
or to pay a fine, as the case may be;
10. In the event of conviction where the imposition of sentence is suspended
and the defendant is placed on community supervision, setting forth the punishment
assessed, the length of community supervision, and the conditions of community
supervision;
11. In the event of acquittal that the defendant be discharged;
12. The county and court in which the case was tried and, if there was a
change of venue in the case, the name of the county in which the prosecution was
originated;
13. The offense or offenses for which the defendant was convicted;
14. The date of the offense or offenses and degree of offense for which the
defendant was convicted;
15. The term of sentence;
16. The date judgment is entered;
17. The date sentence is imposed;
18. The date sentence is to commence and any credit for time served;
19. The terms of any order entered pursuant to Article 42.08 of this code that
the defendant's sentence is to run cumulatively or concurrently with another sentence
or sentences;
20. The terms of any plea bargain;
21. Affirmative findings entered pursuant to Subdivision (2) of Subsection (a)
of Section 3g of Article 42.12 of this code;
22. The terms of any fee payment ordered under Article 42.151 of this code;
23. The defendant's thumbprint taken in accordance with Article 38.33 of this
code;
24. In the event that the judge orders the defendant to repay a reward or part
of a reward under Articles 37.073 and 42.152 of this code, a statement of the amount of
the payment or payments required to be made;
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
8
25. In the event that the court orders restitution to be paid to the victim, a
statement of the amount of restitution ordered and:
(A) the name of the victim and the permanent mailing address of the victim at
the time of the judgment; or
(B) if the court determines that the inclusion of the victim's name and address
in the judgment is not in the best interest of the victim, the name and address of a
person or agency that will accept and forward restitution payments to the victim;
26. In the event that a pre-sentence investigation is required by Section 9(a),
(b), (h), or (i), Article 42.12 of this code, a statement that the pre-sentence investigation
was done according to the applicable provision;
27. In the event of conviction of an offense for which registration as a sex
offender is required under Chapter 62, a statement that the registration requirement of
that chapter applies to the defendant and a statement of the age of the victim of the
offense;
28. The defendant's state identification number required by Section
60.052(a)(2) , if that number has been assigned at the time of the judgment; and
29. The incident number required by Section 60.052(a)(4), if that number has
been assigned at the time of the judgment.
Sec. 2. The judge may order the prosecuting attorney, or the attorney or
attorneys representing any defendant, or the court clerk under the supervision of an
attorney, to prepare the judgment, or the court may prepare the same.
Sec. 3. The provisions of this article shall apply to both felony and
misdemeanor cases.
Sec. 4. The Office of Court Administration of the Texas Judicial System shall
promulgate a standardized felony judgment form that conforms to the requirements of
Section 1 of this article. A court entering a felony judgment shall use the form
promulgated under this section.
Sec. 5. In addition to the information described by Section 1 of this article, the
judgment should reflect affirmative findings entered pursuant to Article 42.013 of this
code.
Sec. 6. In addition to the information described by Section 1 of this article, the
judgment should reflect affirmative findings entered pursuant to Article 42.014 of this
code.
Sec. 7. In addition to the information described by Section 1, the judgment
should reflect affirmative findings entered pursuant to Article 42.015.
Sec. 8. In addition to the information described by Section 1, the judgment
should reflect affirmative findings entered pursuant to Article 42.017.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
9
Municipal and Justice Court Judgments
Art. 45.041. JUDGMENT. (a) The judgment and sentence, in case of conviction in a
criminal action before a justice of the peace or municipal court judge, shall be that the
defendant pay the amount of the fine and costs to the state.
(b) The justice or judge may direct the defendant:
(1) to pay:
(A) the entire fine and costs when sentence is pronounced;
(B) the entire fine and costs at some later date; or
(C) a specified portion of the fine and costs at designated
intervals;
(2) if applicable, to make restitution to any victim of the offense in
an amount not to exceed $500; and
(3) to satisfy any other sanction authorized by law.
(c) The justice or judge shall credit the defendant for time served in jail as
provided by Article 42.03. The credit shall be applied to the amount of the fine and
costs at the rate provided by Article 45.048.
(d) All judgments, sentences, and final orders of the justice or judge shall be
rendered in open court.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1971, 62nd Leg., p.
2990, ch. 987, Sec. 5, eff. June 15, 1971. Renumbered from Vernon's Ann.C.C.P. art.
45.50 and amended by Acts 1999, 76th Leg., ch. 1545, Sec. 39, eff. Sept. 1, 1999.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
10
Affirmative Findings
Art. 42.013. FINDING OF FAMILY VIOLENCE. In the trial of an offense under Title 5,
Penal Code, if the court determines that the offense involved family violence, as defined
by Section 71.004, Family Code, the court shall make an affirmative finding of that
fact and enter the affirmative finding in the judgment of the case.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 9.01, eff. Sept. 1,
1993. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 7.002(h),
eff. Sept. 1, 2003.
Art. 42.014. FINDING THAT OFFENSE WAS COMMITTED BECAUSE OF BIAS OR
PREJUDICE. (a) In the trial of an offense under Title 5, Penal Code, or Section 28.02,
28.03, or 28.08, Penal Code, the judge shall make an affirmative finding of fact and
enter the affirmative finding in the judgment of the case if at the guilt or innocence
phase of the trial, the judge or the jury, whichever is the trier of fact, determines beyond
a reasonable doubt that the defendant intentionally selected the person against whom
the offense was committed or intentionally selected property damaged or affected as
a result of the offense because of the defendant's bias or prejudice against a group
identified by race, color, disability, religion, national origin or ancestry, age, gender, or
sexual preference.
(b) The sentencing judge may, as a condition of punishment, require
attendance in an educational program to further tolerance and acceptance of others.
(c) In this article, "sexual preference" has the following meaning only: a
preference for heterosexuality, homosexuality, or bisexuality.
Added by Acts 1993, 73rd Leg., ch. 987, Sec. 5, eff. Sept. 1, 1993. Amended by Acts
1995, 74th Leg., ch. 318, Sec. 50, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 85, Sec.
1.02, eff. Sept. 1, 2001.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
11
Enhanced Disorderly Conduct and Public Intoxication Offenses
Sec. 15A. On conviction of an offense for which punishment is enhanced
under Section 12.43(c), Penal Code, the court may suspend the imposition of the
sentence and place the defendant on community supervision if the court finds that the
defendant would benefit from community supervision and enters its finding on the
record. The judge may suspend in whole or in part the imposition of any fine
imposed on conviction. All provisions of this article applying to a defendant placed on
community supervision for a misdemeanor apply to a defendant placed on community
supervision under this section, except that the court shall require the defendant as a
condition of community supervision to:
(1) submit to diagnostic testing for addiction to alcohol or a controlled
substance or drug;
(2) submit to a psychological assessment;
(3) if indicated as necessary by testing and assessment, participate in an
alcohol or drug abuse treatment or education program; and
(4) pay the costs of testing, assessment, and treatment or education, either
directly or as a court cost.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
12
§ 12.43. PENALTIES FOR REPEAT AND HABITUAL MISDEMEANOR
OFFENDERS.
(c) If it is shown on the trial of an offense punishable as a Class C misdemeanor under
Section 42.01 or 49.02 that the defendant has been before convicted under either of
those sections three times or three times for any combination of those offenses and
each prior offense was committed in the 24 months preceding the date of commission of
the instant offense, the defendant shall be punished by:
(1) a fine not to exceed $2,000;
(2) confinement in jail for a term not to exceed 180 days; or
(3) both such fine and confinement.
(d) If the punishment scheme for an offense contains a specific enhancement
provision increasing punishment for a defendant who has previously been convicted of
the offense, the specific enhancement provision controls over this section.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993,
73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, § 2, eff.
Sept. 1, 1995; Acts 1999, 76th Leg., ch. 564, § 1, eff. Sept. 1, 1999.
§ 12.46. USE OF PRIOR CONVICTIONS. The use of a conviction for enhancement
purposes shall not preclude the subsequent use of such conviction for enhancement
purposes.
Added by Acts 1979, 66th Leg., p. 1027, ch. 459, § 1, eff. June 7, 1979. Amended by
Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
§ 12.47. PENALTY IF OFFENSE COMMITTED BECAUSE OF BIAS OR PREJUDICE.
(a) If an affirmative finding under Article 42.014, Code of Criminal Procedure,
is made in the trial of an offense other than a first degree felony or a Class A
misdemeanor, the punishment for the offense is increased to the punishment
prescribed for the next highest category of offense. If the offense is a Class A
misdemeanor, the minimum term of confinement for the offense is increased to 180
days. This section does not apply to the trial of an offense of injury to a disabled
individual under § 22.04, if the affirmative finding in the case under Article 42.014,
Code of Criminal Procedure, shows that the defendant intentionally selected the victim
because the victim was disabled.
(b) The attorney general, if requested to do so by a prosecuting attorney, may
assist the prosecuting attorney in the investigation or prosecution of an offense
committed because of bias or prejudice. The attorney general shall designate one
individual in the division of the attorney general's office that assists in the prosecution
of criminal cases to coordinate responses to requests made under this subsection.
Added by Acts 1993, 73rd Leg., ch. 987, § 1, eff. Sept. 1, 1993. Amended by Acts 1997,
75th Leg., ch. 751, § 1, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 85, § 1.01, eff.
Sept. 1, 2001.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
13
PENAL CODE
Art. 42.019. MOTOR FUEL THEFT. (a) A judge shall enter an affirmative finding in the
judgment in a case if the judge or jury, whichever is the finder of fact, determines
beyond a reasonable doubt in the guilt or innocence phase of the trial of an offense
under Section 31.03, Penal Code, that the defendant, in committing the offense:
(1) dispensed motor fuel into the fuel tank of a motor vehicle on the premises
of an establishment at which motor fuel is offered for retail sale; and
(2) after dispensing the motor fuel, left the premises of the establishment
without paying the establishment for the motor fuel.
(b) If a judge enters an affirmative finding as required by Subsection (a) and
determines that the defendant has previously been convicted of an offense the judgment
for which contains an affirmative finding under Subsection (a), the judge shall enter a
special affirmative finding in the judgment in the case.
Added by Acts 2001, 77th Leg., ch. 359, Sec. 1, eff. Sept. 1, 2001.
§ 31.03. THEFT.
(e) Except as provided by Subsection (f), an offense under
this section is:
(1) a Class C misdemeanor if the value of the property stolen is less
than:
(A) $50; or
(B) $20 and the defendant obtained the property by issuing
or passing a check or similar sight order in a manner described by Section 31.06;
TRANSPORTATION CODE
§ 521.349. ACQUIRING MOTOR FUEL WITHOUT PAYMENT:
AUTOMATIC SUSPENSION; LICENSE DENIAL.
(a) A person's driver's license is automatically suspended on final conviction of an
offense under Section 31.03, Penal Code, if the judgment in the case contains a special
affirmative finding under Article 42.019, Code of Criminal Procedure.
(b) The department may not issue a driver's license to a person convicted of
an offense specified in Subsection (a) who, on the date of the conviction, did not hold a
driver's license.
(c) The period of suspension under this section is the 180 days after the date
of a final conviction, and the period of license denial is the 180 days after the date the
person applies to the department for reinstatement or issuance of a driver's license,
unless the person has previously been denied a license under this section or had a
license suspended, in which event the period of suspension is one year after the date of
a final conviction, and the period of license denial is one year after the date the person
applies to the department for reinstatement or issuance of a driver's license.
Added by Acts 2001, 77th Leg., ch. 359, § 2, eff. Sept. 1, 2001.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
14
TRANSPORTATION CODE
SUBCHAPTER C. FINANCIAL RESPONSIBILITY; REQUIREMENTS
§ 601.051. REQUIREMENT OF FINANCIAL RESPONSIBILITY. A person may
not operate a motor vehicle in this state unless financial responsibility is established for
that vehicle through:
(1) a motor vehicle liability insurance policy that complies with
Subchapter D;
(2) a surety bond filed under Section 601.121;
(3) a deposit under Section 601.122;
(4) a deposit under Section 601.123; or
(5) self-insurance under Section 601.124.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 601.191. OPERATION OF MOTOR VEHICLE IN VIOLATION OF
MOTOR VEHICLE LIABILITY INSURANCE REQUIREMENT; OFFENSE.
(a) A person commits an offense if the person operates a motor vehicle in violation of
Section 601.051.
(b) Except as provided by Subsections (c) and (d), an offense under this
section is a misdemeanor punishable by a fine of not less than $175 or more than
$350.
(c) If a person has been previously convicted of an offense under this section,
an offense under this section is a misdemeanor punishable by a fine of not less than
$350 or more than $1,000.
(d) If the court determines that a person who has not been previously
convicted of an offense under this section is economically unable to pay the fine, the
court may reduce the fine to less than $175.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
15
§ 684.011. PROHIBITION AGAINST UNATTENDED VEHICLES IN CERTAIN AREAS.
(a) The owner or operator of a vehicle may not leave unattended on a parking facility a
vehicle that:
(1) is in or obstructs a vehicular traffic aisle, entry, or exit of the
parking facility;
(2) prevents a vehicle from exiting a parking space in the facility;
(3) is in or obstructs a fire lane marked according to Subsection (c);
or
(4) does not display the special license plates issued under Section
504.201 or the disabled parking placard issued under Chapter 681 for a vehicle
transporting a disabled person and is in a parking space that is designated for the
exclusive use of a vehicle transporting a disabled person.
§ 681.011. OFFENSES; PRESUMPTION.
(a) A person commits an offense if:
(1) the person stands a vehicle on which are displayed license plates
issued under Section 504.201 or 504.202 or a disabled parking placard in a parking
space or area designated specifically for persons with disabilities by:
(A) a political subdivision; or
(B) a person who owns or controls private property used for
parking as to which a political subdivision has provided for the application of this
section under Subsection (f); and
(2) the standing of the vehicle in that parking space or area is not
authorized by Section 681.006, 681.007, or 681.008.
(b) A person commits an offense if the person:
(1) stands a vehicle on which license plates issued under Section
504.201 or 504.202 are not displayed and a disabled parking placard is not displayed
in a parking space or area designated specifically for individuals with disabilities by:
(A) a political subdivision; or
(B) a person who owns or controls private property used for
parking as to which a political subdivision has provided for the application of this
section under this Subsection (f); or
(2) stands a vehicle displaying a white on red shield disabled parking
placard or license plates issued under Section 504.201 in a space designated under
Section 681.009(e) for the exclusive use of vehicles displaying a white on blue shield
disabled parking placard.
(c) A person commits an offense if the person stands a vehicle so that the
vehicle blocks an architectural improvement designed to aid persons with disabilities,
including an access aisle or curb ramp.
(d) A person commits an offense if the person lends a disabled parking
placard issued to the person to a person who uses the placard in violation of this
section.
(e) In a prosecution under this section, it is presumed that the registered
owner of the motor vehicle is the person who left the vehicle standing at the time and
place the offense occurred.
(f) A political subdivision may provide that this section applies to a parking
space or area for persons with disabilities on private property that is designated in
compliance with the identification requirements referred to in Section 681.009(b).
(g) Except as provided by Subsections (h)-(k), an offense under this section is
a misdemeanor punishable by a fine of not less than $250 or more than $500.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
16
(h) If it is shown on the trial of an offense under this section that the person
has been previously convicted one time of an offense under this section, the offense is
punishable by a fine of not less than $300 or more than $600.
(i) If it is shown on the trial of an offense under this section that the person
has been previously convicted two times of an offense under this section, the offense is
punishable by:
(1) a fine of not less than $300 or more than $600; and
(2) not less than 10 or more than 20 hours of community
service.
(j) If it is shown on the trial of an offense under this section that the person
has been previously convicted three times of an offense under this section, the offense
is punishable by:
(1) a fine of not less than $500 or more than $1,000;
and
(2) not less than 20 or more than 50 hours community service.
(k) If it is shown on the trial of an offense under this section that the person
has been previously convicted four times of an offense under this section, the offense is
punishable by a fine of $1,000 and 50 hours of community service.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
17
§ 621.506. OFFENSE OF OPERATING OR LOADING OVERWEIGHT VEHICLE;
PENALTY; DEFENSE. (a) A person commits an offense if the person:
(1) operates a vehicle or combination of vehicles in violation of
Section 621.101, 622.012, 622.031, 622.133, 622.953, or 623.162; or
(2) loads a vehicle or causes a vehicle to be loaded in
violation of Section 621.503.
(b) An offense under this section is a misdemeanor punishable:
(1) by a fine of not less than $100 and not more than $150;
(2) on conviction of an offense involving a vehicle having a single axle
weight, tandem axle weight, or gross weight that is more than 5,000 but not more than
10,000 pounds heavier than the vehicle's allowable weight, by a fine of not less than
$300 or more than $500;
(3) on conviction of an offense involving a vehicle having a single axle
weight, tandem axle weight, or gross weight that is more than 10,000 pounds heavier
than the vehicle's allowable weight, by a fine of not less than $500 or more than
$1,000; or
(4) on conviction before the first anniversary of the date of a previous
conviction under this section, by a fine in an amount that is twice the amount specified
by Subdivision (1), (2), or (3).
(c) On conviction of a violation of an axle weight limitation, the court may
assess a fine less than the applicable minimum amount prescribed by Subsection (b) if
the court finds that when the violation occurred:
(1) the vehicle was registered to carry the maximum gross weight
authorized for that vehicle under Section 621.101; and
(2) the gross weight of the vehicle did not exceed that maximum
gross weight.
(d) A judge or justice shall promptly report to the Department of Public Safety
each conviction obtained in the judge's or the justice's court under this section. The
Department of Public Safety shall keep a record of each conviction reported to it under
this subsection.
(e) If a corporation fails to pay the fine assessed on conviction of an offense
under this section, the district or county attorney in the county in which the conviction
occurs may file suit against the corporation to collect the fine.
(f) A justice or municipal court has jurisdiction of an offense under this
section.
(g) Except as provided by Subsection (h), a governmental entity that collects a
fine under this section for an offense involving a vehicle having a single axle weight,
tandem axle weight, or gross weight that is more than 5,000 pounds heavier than
the vehicle's allowable weight shall send an amount equal to 50 percent of the fine to
the comptroller in the manner provided by Subchapter B, Chapter 133, Local
Government Code.
(h) If the offense described by Subsection (g) occurred within 20 miles of an
international border, the entire amount of the fine shall be deposited for the purposes of
road maintenance in:
(1) the municipal treasury, if the fine was imposed by a municipal
court; or
(2) the county treasury, if the fine was imposed by a justice court.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th
Leg., ch. 165, § 30.133(b), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1101, § 1, eff.
Sept. 1, 1999; Acts 2001, 77th Leg., ch. 941, § 26, eff. Sept. 1, 2001; Acts 2003, 78th
Leg., ch. 209, § 78(a), eff. Jan. 1, 2004; Acts 2005, 79th Leg., ch. 332, § 1, eff. June 17,
2005.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
18
§ 621.507. GENERAL OFFENSE; PENALTY. (a) A person commits an offense
if the person violates a provision of this subtitle for which an offense is not specified by
another section of this subtitle.
(b) An offense under this section is a misdemeanor punishable:
(1) by a fine not to exceed $200;
(2) on conviction before the first anniversary of the date of a previous
conviction under this section:
(A) by a fine not to exceed $500, by confinement in a
county jail for not more than 60 days, or by both the fine and confinement; or
(B) if the convicted person is a corporation, by a fine not to
exceed $1,000; or
(3) on a conviction before the first anniversary of the date of a
previous conviction under this section that was punishable under Subdivision (2) or
this subdivision:
(A) by a fine not to exceed $1,000, by confinement in the
county jail for not more than six months, or by both the fine and confinement; or
(B) if the convicted person is a corporation, by a fine not to
exceed $2,000.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th
Leg., ch. 941, § 27, eff. Sept. 1, 2001.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
19
STATE RULES
TEXAS RULES OF EVIDENCE
Article II. Judicial Notice
Tex. Evid. R. 201 (2007)
Rule 201 Judicial Notice of Adjudicative Facts
(a) Scope of Rule. --This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. --A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
(c) When Discretionary. --A court may take judicial notice, whether requested or not.
(d) When Mandatory. --A court shall take judicial notice if requested by a party and
supplied with the necessary information.
(e) Opportunity to Be Heard. --A party is entitled upon timely request to an opportunity
to be heard as to the propriety of taking judicial notice and the tenor of the matter
noticed. In the absence of prior notification, the request may be made after judicial
notice has been taken.
(f) Time of Taking Notice. --Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. --In civil cases, the court shall instruct the jury to accept as
conclusive any fact judicially noticed. In criminal cases, the court shall instruct the jury
that it may, but is not required to, accept as conclusive any fact judicially noticed.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
20
ALCOHOLIC BEVERAGE CODE
§ 106.071. PUNISHMENT FOR ALCOHOL-RELATED OFFENSE BY MINOR.
(a) This section applies to an offense under Section 106.02, 106.025, 106.04, 106.05, or
106.07.
(b) Except as provided by Subsection (c), an offense to which this section
applies is a Class C misdemeanor.
(c) If it is shown at the trial of the defendant that the defendant is a minor
who is not a child and who has been previously convicted at least twice of an offense to
which this section applies, the offense is punishable by:
(1) a fine of not less than $250 or more than $2,000;
(2) confinement in jail for a term not to exceed 180 days; or
(3) both the fine and confinement.
(d) In addition to any fine and any order issued under Section 106.115:
(1) the court shall order a minor placed on deferred disposition for or
convicted of an offense to which this section applies to perform community service for:
(A) not less than eight or more than 12 hours, if the minor
has not been previously convicted of an offense to which this section applies; or
(B) not less than 20 or more than 40 hours, if the
minor has been previously convicted once of an offense to which this section applies;
and
(2) the court shall order the Department of Public Safety to suspend
the driver's license or permit of a minor convicted of an offense to which this section
applies or, if the minor does not have a driver's license or permit, to deny the issuance
of a driver's license or permit for:
(A) 30 days, if the minor has not been previously convicted
of an offense to which this section applies;
(B) 60 days, if the minor has been previously convicted
once of an offense to which this section applies; or
(C) 180 days, if the minor has been previously convicted
twice or more of an offense to which this section applies.
(e) Community service ordered under this section must be related to
education about or prevention of misuse of alcohol if programs or services providing
that education are available in the community in which the court is located. If
programs or services providing that education are not available, the court may order
community service that it considers appropriate for rehabilitative purposes.
(f) In this section:
(1) a prior adjudication under Title 3, Family Code, that the minor
engaged in conduct described by this section is considered a conviction; and
(2) a prior order of deferred disposition for an offense alleged under
this section is considered a conviction.
(g) In this section, "child" has the meaning assigned by Section 51.02, Family
Code.
(h) A driver's license suspension under this section takes effect on the 11th
day after the date the minor is convicted.
(i) A defendant who is not a child and who has been previously convicted at
least twice of an offense to which this section applies is not eligible to receive a deferred
disposition or deferred adjudication.
Added by Acts 1997, 75th Leg., ch. 1013, § 9, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 76, § 4, eff. Sept. 1, 1999;
Acts 1999, 76th Leg., ch. 1207, § 3, eff. Sept. 1, 1999; Acts
2005, 79th Leg., ch. 949, § 30, eff. Sept. 1, 2005.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
21
§ 106.04. CONSUMPTION OF ALCOHOL BY A MINOR. (a) A minor commits
an offense if he consumes an alcoholic beverage.
(b) It is an affirmative defense to prosecution under this section that the
alcoholic beverage was consumed in the visible presence of the minor's adult parent,
guardian, or spouse.
(c) An offense under this section is punishable as provided by Section
106.071.
(d) A minor who commits an offense under this section and who has been
previously convicted twice or more of offenses under this section is not eligible for
deferred disposition. For the purposes of this subsection:
(1) an adjudication under Title 3, Family Code, that the minor
engaged in conduct described by this section is considered a conviction of an offense
under this section; and
(2) an order of deferred disposition for an offense alleged under this
section is considered a conviction of an offense under this section.
Acts 1977, 65th Leg., p. 514, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1991, 72nd Leg., ch. 163, § 2, eff. Sept. 1,
1991; Acts 1993, 73rd Leg., ch. 934, § 77, eff. Sept. 1, 1993;
Acts 1997, 75th Leg., ch. 1013, § 4, eff. Sept. 1, 1997; Acts
1999, 76th Leg., ch. 1207, § 1, eff. Sept. 1, 1999.
§ 106.041. DRIVING UNDER THE INFLUENCE OF ALCOHOL BY MINOR.
(a) A minor commits an offense if the minor operates a motor vehicle in a public place
while having any detectable amount of alcohol in the minor's system.
(b) Except as provided by Subsection (c), an offense under this section is a
Class C misdemeanor.
(c) If it is shown at the trial of the defendant that the defendant is a minor
who is not a child and who has been previously convicted at least twice of an offense
under this section, the offense is punishable by:
(1) a fine of not less than $500 or more than $2,000;
(2) confinement in jail for a term not to exceed 180 days; or
(3) both the fine and confinement.
(d) In addition to any fine and any order issued under Section 106.115, the
court shall order a minor convicted of an offense under this section to perform
community service for:
(1) not less than 20 or more than 40 hours, if the minor has not
been previously convicted of an offense under this section; or
(2) not less than 40 or more than 60 hours, if the minor has been
previously convicted of an offense under this section.
(e) Community service ordered under this section must be related to
education about or prevention of misuse of alcohol.
(f) A minor who commits an offense under this section and who has been
previously convicted twice or more of offenses under this section is not eligible for
deferred disposition or deferred adjudication.
(g) An offense under this section is not a lesser included offense under Section
49.04, Penal Code.
(h) For the purpose of determining whether a minor has been previously
convicted of an offense under this section:
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
22
(1) an adjudication under Title 3, Family Code, that the minor
engaged in conduct described by this section is considered a conviction under this
section; and
(2) an order of deferred disposition for an offense alleged under this
section is considered a conviction of an offense under this section.
(i) A peace officer who is charging a minor with committing an offense under
this section is not required to take the minor into custody but may issue a citation to
the minor that contains written notice of the time and place the minor must appear
before a magistrate, the name and address of the minor charged, and the offense
charged.
(j) In this section:
(1) "Child" has the meaning assigned by Section 51.02, Family Code.
(2) "Motor vehicle" has the meaning assigned by Section 32.34(a),
Penal Code.
(3) "Public place" has the meaning assigned by Section 1.07, Penal
Code.
Added by Acts 1997, 75th Leg., ch. 1013, § 5, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 1207, § 2, eff. Sept. 1,
1999; Acts 2005, 79th Leg., ch. 949, § 29, eff. Sept. 1, 2005.
§ 106.05. POSSESSION OF ALCOHOL BY A MINOR. (a) Except as provided in
Subsection (b) of this section, a minor commits an offense if he possesses an alcoholic
beverage.
(b) A minor may possess an alcoholic beverage:
(1) while in the course and scope of the minor's employment if the
minor is an employee of a licensee or permittee and the employment is not prohibited
by this code;
(2) if the minor is in the visible presence of his adult parent,
guardian, or spouse, or other adult to whom the minor has been committed by a court;
or
(3) if the minor is under the immediate supervision of a
commissioned peace officer engaged in enforcing the provisions of this code.
(c) An offense under this section is punishable as provided by Section
106.071.
Acts 1977, 65th Leg., p. 514, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1979, 66th Leg., p. 1973, ch. 777, § 21, eff.
Aug. 27, 1979; Acts 1991, 72nd Leg., ch. 163, § 3, eff. Sept. 1,
1991; Acts 1993, 73rd Leg., ch. 934, § 78, eff. Sept. 1, 1993;
Acts 1997, 75th Leg., ch. 1013, § 6, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1139, § 2, eff. June 19, 1997.
§ 106.07. MISREPRESENTATION OF AGE BY A MINOR. (a) A minor commits
an offense if he falsely states that he is 21 years of age or older or presents any
document that indicates he is 21 years of age or older to a person engaged in selling or
serving alcoholic beverages.
(b) An offense under this section is punishable as provided by Section
106.071.
Acts 1977, 65th Leg., p. 514, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1981, 67th Leg., p. 257, ch. 107, § 10, eff.
Sept. 1, 1981; Acts 1985, 69th Leg., ch. 285, § 10, eff. Sept. 1,
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
23
1986; Acts 1985, 69th Leg., ch. 462, § 11, eff. Sept. 1, 1986;
Acts 1997, 75th Leg., ch. 1013, § 8, eff. Sept. 1, 1997.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
24
PENAL CODE
CHAPTER 22. ASSAULTIVE OFFENSES
§ 22.01. ASSAULT. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to
another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent
bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another
when the person knows or should reasonably believe that the other will regard the
contact as offensive or provocative.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that
the offense is a felony of the third degree if the offense is committed against:
(1) a person the actor knows is a public servant while the public
servant is lawfully discharging an official duty, or in retaliation or on account of an
exercise of official power or performance of an official duty as a public servant;
(2) a person whose relationship to or association with the defendant
is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if it is shown on
the trial of the offense that the defendant has been previously convicted of an offense
under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person
whose relationship to or association with the defendant is described by Section
71.0021(b), 71.003, or 71.005, Family Code;
(3) a person who contracts with government to perform a service in a
facility as defined by Section 1.07(a)(14), Penal Code, or Section 51.02(13) or (14),
Family Code, or an employee of that person:
(A) while the person or employee is engaged in performing a
service within the scope of the contract, if the actor knows the person or employee is
authorized by government to provide the service; or
(B) in retaliation for or on account of the person's or
employee's performance of a service within the scope of the contract; or
(4) a person the actor knows is a security officer while the officer is
performing a duty as a security officer.
(c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except
that the offense is:
(1) a Class A misdemeanor if the offense is committed under
Subsection (a)(3) against an elderly individual or disabled individual, as those terms are
defined by Section 22.04; or
(2) a Class B misdemeanor if the offense is committed by a person
who is not a sports participant against a person the actor knows is a sports participant
either:
(A) while the participant is performing duties or
responsibilities in the participant's capacity as a sports participant; or
(B) in retaliation for or on account of the participant's
performance of a duty or responsibility within the participant's capacity as a sports
participant.
(d) For purposes of Subsection (b), the actor is presumed to have known the
person assaulted was a public servant or a security officer if the person was wearing a
distinctive uniform or badge indicating the person's employment as a public servant or
status as a security officer.
(e) In this section:
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
25
(1), (2) Repealed by Acts 2005, 79th Leg., ch. 788, § 6.
(3) "Security officer" means a commissioned security officer as
defined by Section 1702.002, Occupations Code, or a noncommissioned security officer
registered under Section 1702.221, Occupations Code.
(4) "Sports participant" means a person who participates in any
official capacity with respect to an interscholastic, intercollegiate, or other organized
amateur or professional athletic competition and includes an athlete, referee, umpire,
linesman, coach, instructor, administrator, or staff member.
(f) For the purposes of Subsection (b)(2):
(1) a defendant has been previously convicted of an offense listed in
Subsection (b)(2) committed against a person whose relationship to or association with
the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, 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 in
Subsection (b)(2) is a conviction of an offense listed in Subsection (b)(2).
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1977, 65th Leg., 1st C.S., p. 55, ch. 2, § 12, 13,
eff. July 22, 1977; Acts 1979, 66th Leg., p. 260, ch. 135, § 1,
2, eff. Aug. 27, 1979; Acts 1979, 66th Leg., p. 367, ch. 164, §
2, eff. Sept. 1, 1979; Acts 1983, 68th Leg., p. 5311, ch. 977, §
1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, § 2.08,
eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 739, § 1 to 3, eff.
Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 14, § 284(23) to (26),
eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 334, § 1, eff.
Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 366, § 1, eff. Sept. 1,
1991; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994;
Acts 1997, 75th Leg., ch. 165, § 27.01, eff. Sept. 1, 1997; Acts
1995, 74th Leg., ch. 318, § 5, eff. Sept. 1, 1995; Acts 1995,
74th Leg., ch. 659, § 1, eff. Sept. 1, 1995; Acts 1997, 75th
Leg., ch. 165, § 27.01, 31.01(68), eff. Sept. 1, 1997; Acts
1999, 76th Leg., ch. 62, § 15.02(a), eff. Sept. 1, 1999; Acts
1999, 76th Leg., ch. 1158, § 1, eff. Sept. 1, 1999; Acts 2003,
78th Leg., ch. 294, § 1, eff. Sept. 1, 2003; Acts 2003, 78th
Leg., ch. 1019, § 1, 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg.,
ch. 1028, § 1, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 728,
§ 16.001, 16.002, eff. Sept. 1, 2005, Acts 2005, 79th Leg., ch.
788, § 1, 2, 6, eff. Sept. 1, 2005.
Affirmative Findings & Enhancement
Dana D. Jacobson, Esq.
26