Pop Quiz: A dude commits a felony in 1998 and at the time has no priors. Dude leaves Texas and isn't arrested until 2008. While on the run the dude picks up a felony in another state and is convicted and does pen time.

When I try this dude in 2009, is he probation eligible because at the time of the offense he had no priors? It's Friday and my brain isn't all there. Any thoughts?! Have a nice weekend!

That issue is, suprisingly, unresolved in case law. If you look at Jordan v. State, 36 SW3d 871, you will notice that the CCA left the issue unresolved, only focusing on the meaning of final felony conviction.

It would make sense to say that the work "previously" refers to the time before the trial, because it would be pointless to put the defendant on probation after having already received a final felony conviction. But, an argument can certainly be made in the other direction. For more recent case law, see Milburn v. State, 214 SW3d 194.

For discussion of this issue and footnotes, see page 79, The Perfect Plea (2008 edition).

[This message was edited by JB on 03-27-09 at .]

Can the defendant swear that he "has not previously been convicted of a felony" if he has been? 42.12, sec.4(e) asks for an oath using those words. Seems like the term "previously" as they use it there, would mean previousl to the swearing of the oath, since no other reference is made.

A reasonable interpretation. It's a unique phrase.

That's true! The defendant cannot swear that he has not previously been convicted of a felony.

Now, it's Monday and that makes total sense! Thanks for the help.