Ever read something that was so clear to you that you start to doubt and read things into it that might not be there?

31.03(e)(4)(D) - ... and the def. has been previously convited two or more times of any grade of theft.

This would apply to previous Theft By Check convictions, would it not. Don't know why I'm making this difficult, but I always seem to do so.

I think what is throwing me off is that 31.04 Theft of Service language doesn't have enhancement language.

This raises another Question. Does this mean that you can have 5 theft of service convictions and not be enhanced, but if you are later charged with theft by check, you could use the T of S convictions to enhance the charge to a SJF since the Service convictions would be considered any grade of theft? Or not?

Well, mostly yes.

Theft by check can be theft of property or theft of service. Depends what was stolen with the check. The only special rule for theft by check is the provision that makes a theft by check of property a Class B theft if the amount is $20 or over.

Theft of service does not have a third-offender-is-a-felony (3X=StJ)provision. It does, however have a " $20 or over is a Class B" provision.

"...previously convicted two or more times of any grade of theft..." Says "any grade", not any type. Nevertheless, I think Theft of Service, Theft of Trade Secrets and Theft of Video Services are all thefts as described in Sec. 31.03(e)(4)(D), quoted in part above. I do not recall reading any case law to support my position, however.

Has anyone been challenged on using Theft of service to elevate an otherwise misdemeanor theft to a felony?

A theft of service with a prior theft of service could be enhanced under PC Sec. 12.43 to a 30 day or 90 day minimum jail term.