I am in the dark on State Jail Felony election for punishment. 42.12(3)(e)(2)seems to say that a Judge cannot give probation on a State Jail. 42.12 (4)(d)(2) says the jury cannot recommend probation for a State Jail. Finally, 42.12(a)(2)says the Judge may suspend the imposition of sentence in a State Jail or order the sentence be executed. If a defendant is going to trial on a State Jail and he elects the Judge to punish, can the Judge give probation? What if he elects the jury and they give a term of confinement, say 1 year. Can the Judge then suspend that sentence under 42.12(a)(2) with or without a jury recommendation?

For offenses prior to September 1, a defendant cannot receive probation for a state jail felony if he elects jury punishment. Art. 42.12, Sec. 4(d)(2).

A judge cannot probate a state jail felony under Art. 42.12, Sec. 3. See Art. 42.12, Sec. 3(e)(2). The judge can probate a state jail felony, punishable under Tex. Penal Code 12.35(a), under Art. 42.12, Sec. 15(a), if the defendant elects judge punishment.

Watch out for cases like criminally negligent homicide where there is a deadly weapon finding. In that instance, it appears that the defendant is ineligible for probation from the judge because the defendant is punished under Tex. Penal Code 12.35(c), thus rendering Art. 42.12, Sec. 15(a) inapplicable.

Art. 42.12, Sec. 15 was amended for offenses commited on or after September 1, 2003, by HB 2668. This change requires judges to probate Health & Safety Code State Jail felonies punishable under Tex. Penal Code 12.35(a) if the defendant has not been previously convicted of a felony. I don't know how this section would operate if the defendant elected jury punishment--he would still seem to be ineligible for probation under the plain language of Art. 42.12, Sec. 4(d)(2).

I've always had a question whether a judge could probate a state jail sentence if the the defendant elected the jury to assess punishment. (But too scared to risk it).

Dix and Dawson's Texas Practice at Sec. 39.82 seems to think a judge can still grant probation: "The defendant may elect jury punishment, in which event the jury assesses punishment between the statutory range of 180 days to two years. Then it is up to the judge to decide whether to probate the sentence or impose it". However, they cite as authority CCP art. 42.12 sec. 15(a).

They may be right. Section 3 is entitled "Judge Ordered Community Supervision". Section 4 is labeled "Jury Recommended Community Supervision". And Section 15 is simply labeled "Procedures Relating to State Jail Felony Community Supervision". Maybe Section 15 controls as being more specific.

I may be getting an opinion on that very issue soon. It would not seem to comport with the normal practice under the probation statute, though. The court may dodge it in my case because the defendant did not ultimately receive probation, and the point of error is couched as jury charge error.

Check out Anderer v. State, 47 SW3d 60, for a discussion on some of these issues. Some of this is discussed in The Perfect Plea, on page 63. Can't wait for the new topic area where authors can update their books.