Does a 1976 Texas conviction for driving "...under the influence of intoxicating liquor..." (Rev. Stat. 6701l-1, I assume) fit as an allowable enhancement under 49.09(c)(1)(C)?

I've never had to check this out before since the pre-Getts/pre-49.09 enhancement amendments scheme usually didn't take me as far back my elementary school days.

Elementary School days? $%#$%#$%^

Anyway, under the new statutory scheme, I think you can use it. But how are you going to prove it at trial?

(I am getting old)

It can be used. I would try and find the old file from the prosecutor (unlikely), the arresting agency (possible), or the clerk (closest to likely) and see if any of the persons who dealt with the case are still around. If they are they might be able to testify from personal knowledge. If not, you could try the certified copy route and maybe find the book-in info from the jail.

Good luck.

The 1976 conviction is available only if (1) the conviction was final (meaning the defendant didn't get and successfully complete probation or deferred adjudication) and (2) the current offense was committed on or after 9/1/05 (when the law changed to allow conviction older than 10 years, more or less.

John's answer nails the legal issues, the others found your evidentiary issues. Can you locate a J&S? Can you link it to the defendant other than by name?

The question that began this thread leads me to ask if any of you have had problems with courts or defense attorneys saying that the change in the law is prospective only--for both convictions used to enhance as well as current offenses. I have had a couple of troopers call and tell me that their DA or CA wouldn't accept a case as a Class A or a F3 because the new law only applies to convictions which were final after 9/1/05.

Janette Ansolabehere

Ray Bass has tried that angle in our county - that the new law is ex post facto because the defendant didn't know his old DWI's could be used against him when he plead. So far our judges aren't buying.

That issue has been trotted out over and over in other types of cases -- including possession of a weapon by a felon, domestic violence assault (2nd offender) and other repeat offender crimes. The case law is clear, along with the language from each of the bills amending the law: the conduct that counts is the new conduct. The previous conviction is merely an element of the offense that exists or not at the time of the new conduct. Don't fall for that old argument.