I have this coming up, and usually don't get this detailed, but would appreciate the direction of the gurus here.

The issue is, does paragraph (b) of 42.12 section 20 render the provisions of 42.12 section 20 inapplicable to a convicted sex offender and thus nullify a set aside order entered after subsection (b) was enacted?

Paragraph (b) was enacted in 1997. The offender was put on probation prior to the enactment of this provision, but the probation terminated and set aside order signed years after the enactment of this provision.

My main question is, would paragraph (b) be ex post facto (or inapplicable under another theory) to a defendant's probation rendered BEFORE the enactment of paragraph (b)?

(One guru said he did not think it was ex post facto.)

I need to look at the cases involving sex offender registration law and ex post facto claims but have not done so. Is anyone aware of the legislative history regarding paragraph (b) and whether it was enacted to apply to sex offenders in conjunction with the sex offender registration provisions, and whether it is applicable to those committing (or convicted of sex offense reportable crimes) which were committed and sentenced before 1997? What was the intent of paragraph (b)?

Paragraph (b) of 42.12 section 20, which states in relevant part: "This section does not apply to a defendant...convicted of an offense for which on conviction registration as a sex offender is required under Chapter 62."

This defendant is required to register as a sex offender, and did so until a time before the time of this offense.

I have read the Cuellar case (CCA) and the Smiley case (1st), which hold that if a defendant is convicted of another felony after a set aside order is entered, the previous felony is "resurrected" and in the Smiley case, makes the defendant ineligible to qualify for community supervision. Neither address paragraph (b) and how it would affect a defendant situated as I have described.

Here is section 20:

Reduction or Termination of Community Supervision
Sec. 20. (a) At any time, after the defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever
is less, the period of community supervision may be reduced or terminated by the judge. Upon the satisfactory fulfillment of the conditions of community supervision, and the expiration of the
period of community supervision, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary,
to conform to the community supervision period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall
thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that:
(1) proof of the conviction or plea of guilty shall be made
known to the judge should the defendant again be convicted of any
criminal offense; and
(2) if the defendant is an applicant for a license or is a
licensee under Chapter 42, Human Resources Code, the Texas
Department of Human Services may consider the fact that the
defendant previously has received community supervision under this
article in issuing, renewing, denying, or revoking a license under
that chapter.
(b) This section does not apply to a defendant convicted of
an offense under Sections 49.04-49.08, Penal Code, a defendant
convicted of an offense for which on conviction registration as a
sex offender is required under Chapter 62, as added by Chapter 668,
Acts of the 75th Legislature, Regular Session, 1997, or a defendant
convicted of an offense punishable as a state jail felony.

I spent the better part of two days reading the law and seeking the opinions of several recognized criminal appellate gurus. I am so thankful to have such professional fellow prosecutors in several different jurisdictions to spend their valuable time helping me find and understand the law relating to this issue.

[This message was edited by Greg Gilleland on 11-10-06 at .]

[This message was edited by Greg Gilleland on 11-10-06 at .]

Greg, I think you need to look at the savings clause language of the 1997 legislation and see if it limited the effect of the amendment. It does not seem like an ex post facto violation: it does not criminalize past conduct, nor is it punishing the defendant--his punishment was the probation. You might take a look at Scott v. State, 55S.W.3d 593 (Te. Crim. App. 2001) and see if you can pull some useful thoughts from there. One key aspect, I think, is the fact that discharge under 42.12 Sec. 20 is discretionary, not automatic.

Greg, I have not been able to find the bill that made the change in the '97 session. Are you sure that it was '97? Lexis does not show any changes to Sec. 20 in their amendment history. I don't have any books at home to look for this stuff.

In my opinion subsection (b) (whenever it became effective) was designed merely to prohibit the early termination of supervision for persons convicted of certain offenses. I do not think it serves to prohibit discharge once a defendant has successfully completed the full term of supervision (even for those offenses). Thus, I question whether (b) would limit (or void) entry of the type discharge order used in your case. But, I do agree the ex post facto clause should not be a concern. Does your situation involve a Cuellar gun possession question, or something else?

Thanks guys!

Marvin, The "set aside" offense is indecency and the new charge is Agg Sexual Assault, thus I don't have a Cuellar problem where the old felony conviction is an element of the offense. This is more of a punishment question for me.

Chicken Man, I may have misread the subsection (b) where it talks about the 1997 date of the passage of sex offender registration laws. I don't have it at home either.

Ex parte Kubas, 83 S.W.3d 366 (Tex.App.-Corpus Christi 2002), should give some guidance on some of your issues

For purposes of sec. 12.42(c)(2)(B)(ii) the defendant remains "previously convicted" despite the fact of a discharge under 42.12 sec. 20. What case says otherwise? The construction of 12.42(g)(1) in Scott is not involved. Sec. 20 does not "explicitly restrict the collateral consequences of an offense," as sec. 5(c) did in Scott. What other meaning can be given to the provision that the "conviction" may be made known to the court in the subsequent proceeding? In any event, one should not expand the Cuellar infection by default.

The statute allows the judge to set aside the verdict, withdraw the plea, etc. Is there a case that says that is still a "conviction"? Note that these rememdies are permissive, not required. Harris County used to "unsuccessfully" discharge those probationers who did a lousy job but never quite got revoked.

I thought Smiley was it, John. It appears to say that for purposes of punishment, the conviction is resurrected. Note the statute itself calls it a "conviction" even after the discharge. But, I agree it does make one wonder what the purpose of the "set aside" provisions is.

And thus back full circle to subsection (b), which says section 20 does not apply to offenses for which sexual offender reporting applies.

Does this not moot section 20 towards those offenses, thus mooting any set aside order if done?

We used to get lots of these orders on DWI's, which are likewise ineligible. We've had good luck arguing that the discharge orders were void, although we often went in and got the orders nunc pro tunced because they were based upon use of an improper form.

That Smiley case is very interesting. It may overstate the language about the fact of the prior conviction being made known to the trial judge.

Well, I think I have answered the question as far as what I can argue. The Keasler dissent in the Cuellar case says subsection (b) was added in 1999.

In Juvrud, 96 sw3d 550, El Paso, in headnote 10 it says section 20 is not applicable to sex offenders required to register.

My set aside order was signed 4 years after subsection b took effect.

There is another case cited in Cuellar, at note 58, Price 35 sw3d 136 Waco no writ, mentioned in Cuellar that may directly apply but I can't seem to open Lexis at home right now.

Thanks for all the help Chickenman, Martin and Ben. The case Ben cited is a great one also, because my D is also charged with failure to report and intends to try that and the aggravated sexual assault of a child at the same time, at his request.

Yes, that's right, you read that right.

And you're letting him? What a guy.

Greg, the change was enacted in HB2145, effective 9/1/99. Act of May 29, 1999, 76th Leg., R.S., ch. 1415, Sec. 5(b), 1999 Tex. Sess. Law Serv. 4831, 4832-33. Here is the savings clause for that change, however:

The change in law made by this section applies only to a defendant who receives deferred adjudication for an offense or is convicted of an offense on or after the effective date of this Act, regardless of whether the offense for which the defendant receives deferred adjudication or is convicted is committed before, on, or after the effective date of this Act. A defendant receiving deferred adjudication for or convicted of an offense before the effective date of this Act is covered by the law in effect when the defendant received deferred adjudication or was convicted, and the former law is continued in effect for that purpose.

I think the discharge order may be valid.

Here is a link to the enrolled bill text: HB2145-76th R.S.

Thanks so much, Chickenman. I agree with you. Thanks for digging that up. I'll call you after this trial is over and tell you a tale you won't believe.

I really appreciate the help from everyone, especially over the weekend as it was, and that does now answer my question, and along the way I learned alot more law. Which is always a good thing.

Thanks for the help here on the forum, especially chicken man, Ben and Martin. And also thanks to Suzy Morton and Loretta Owen of Fort Bend, Phil Hall of the prison prosecution unit, Doug Arnold of Williamson and Bryan/Brian Case of Travis for their help on the phone.

With ya'lls help I was able to deal with this issue and several others effectively in trial, and got a guilty on agg sexual assault.

Once again proving how valuable this forum is to the brother and sister prosecutors of Texas!

I would be remiss in not recognizing Ben Leonard, because the tactics and voir dire tips I learned from him in the TDCAA sex crimes against children seminar this summer were well used. Who says you can't teach an old dog like me new tricks? Anyone who prosecutes these cases, no matter how many you have tried before (and I have tried a few) would benefit from Ben's presentation and motivation on this subject. Thanks Ben!

Sentencing has been reset but again, thanks to ya'll for really helping a boy out!

BTW, It was the Most. Bizarre. Trial. Ever.

[This message was edited by Greg Gilleland on 11-17-06 at .]

[This message was edited by Greg Gilleland on 11-17-06 at .]

Sounds like TDCAA should send you a bill.

I TOTALLY owe the TDCAA, JB, for all my training going back to baby prosecutor school and the networking since then.

Last but not least, thanks for Floyd Jennings, P.h.D. and JD, Houston, for helping me understand some issues and for referring me to some great experts.

Thanks, Greg, for your kind words. JB, he is probably sending me a bill.