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I am not finding any cases on the question below. Can anyone point me in the right direction?

For the purpose of establishing the maximum term for deferred adjudication community supervision for third degree felonies under Title 7, Penal Code and Chapter 481, Health and Safety Code, are CCP 42A.053(d)(2)(B) [which sets out a 5-year maximum] and 42A.103(a) [which sets out a 10-year maximum] in conflict? If not, which controls and why?

Thanks!
 
Posts: 7 | Registered: December 27, 2005Reply With QuoteReport This Post
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If there are no cases on point, then you'll need to navigate Gov't Code 311.026:

Sec. 311.026. SPECIAL OR LOCAL PROVISION PREVAILS OVER GENERAL. (a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.
(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.

The general provision being 42A.053 and the specific provision being 42A.103 (in that 42A.053 applies to community supervisions in general, but 42A.103 applies only to deferred adjudication community supervisions), I would argue the more specific provisions of 42A.103 apply absent some contrary evidence of a "manifest intent" that the shorter term from 42A.053 applies. That's usually phrased by the Lege using language like "Notwithstanding Art. 42A.103" or something similar, which is not present here.

If I was the defense lawyer arguing for a shorter maximum, I'd dig through the legislative history of the bill shortening the term in the predecessor to 42A.053, because I'm pretty sure the 5-year max was a later change, but such searches are usually fruitless. If the Lege wanted to shorten Df Adjs, they could have easily said so.

(And that all being said ... who needs such a long supervision in that kind of 3F case absent a restitution issue?)
 
Posts: 2410 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
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Shannon, thanks for your help. I never found a case that discussed F3s from Title 7 or Chapter 481, but I did find some cases that made arguments like yours in the context of state jail deferreds that exceeded 5 years. By analogy, it seems to me those cases answer my question.
 
Posts: 7 | Registered: December 27, 2005Reply With QuoteReport This Post
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