I have scoured the Penal Code and Code of Criminal Procedure but cannot find an answer. I have been told that if a Defendant has two prior Theft Convictions (of any level) resulting in jail time, then any future otherwise Misdemeanor-level Theft offense may be enhanced to a State Jail Felony.

True?

Law?

I think it is still an open question as to whether the theft must have resulted in jail time to qualify for the theft-third offender charge.

See this thread for details.

Thank you. Thank You. Thank you.

Like my title said, there was a little embarrassment in asking. I really did read 31.03 several times, but that just escaped me every time.

A follow-up. 31.03 just says "previously convicted." Is there something that would preclude using a prior conviction that was for "straight" probation as opposed to jail time?

That's the first time I've been able to post an answer before the question was asked. A bit scary.

I have always used prior probations for theft enhancement. If challenged, I would note that sec. 12.42 (the habitual offender law) does require that prior convictions not be probations, but signifies that by use of the term "finally convicted." If the term "finally" is to be given any meaning at all, it must be to distinguish probation cases, which are not "final." Sec 31.03 references "convictions," not "finally convicted." Therefore it must include convictions that are not final, i.e. probated sentences.

Never be embarrassed to ask a question on this forum or to call a member of this forum at their office to ask a question. I have been helped so many times by forum members, particularly JB and his fine lawyers, with questions that perhaps "I should have known the answer to but didn't" that it has saved me from being embarrassed in court by having the right information.

The only time you should be embarrassed is when you know you should have asked someone for help but didn't.

Wes is correct, but beware of the fact that Mehaffey, 937 S.W.2d 51 does not apply with respect to theft cases. So there might still be a problem.

Martin is also correct. With some old probation cases, the law allowed the court to basically treat the successfully completed probation like a deferred and undo the conviction. This shouldn't come up except in much older cases that you would typically be dealing with for enhancements, since the habitual offenders have a hard time waiting that long before getting caught again. Nevertheless, you do need to look out for it in the older priors.