After reading Scott v. State (CCA 9/12/01), I wondered how this would affect enhancements under 22.10(f) (in assault cases, definition of prior conviction includes grant of deferred adjudication). So I turned to article 42.12, section 5(c) and noticed that the unfortunate language about diqualifications and disabilities only has an exception for 12.42(g) (now defunct under Scott holding) -- no exception for assault cases. So, not only do we have Scott's issues to contend with, but was there never an exception in the first place for Section 22.01 prosecutions? Yikes?! Is this typical legislative garbage or have I missed something (entirely possible).

Hey John B (since you seem to have your finger on the pulse of this bulletin board), I noticed that you dropped a FN in your family violence article about Scott, but what about the statutory language which leaves out the exception?

Okay, this is my first foray into this forum and, while I am a little hesitant to get into the fray, I can't resist by saying that I can testify to Jana's knowledge and use of tanning beds (at least during law school) but, in an abundance of caution, decline at this time. (See former discussion of tanning-bed-peeking-tom case, just in case someone hasn't read each and every entry).

Tanya: I'm not sure you need the exception to use the enhancement provisions under 22.01, even with Scott. I'd argue that the exception made for 12.42(g) applies to the "disqualifications and disabilities" imposed by law, and as long as you are OK under Scott, you should be able to use the prior deferred's. Does that sound right to you?

Hi Rob! That doesn't sound right to me, but I could be confused! While the family violence enhancements don't rely on sec. 12.42 (obviously!), the 12.42 sex-case enhancements were enabled by language identical to that in 22.01(f). The "disqualification and disabilities" language has been in 42.12, sec. 5 forever, so it applies to all assault def'd adjudications including, of course, the ones that we are now using to enhance new assaults (giving rise to the ex post facto probs addressed in Scott). Plus, there wasn't even an exception in 42.12 for 22.01 (as there was for 12.42's language), so even before Scott, the disqual. and disability language applied to those previously deferred assault cases. Result: As I read Scott, you can't use a prior deferred for enhancement of a sex case unless the prior deferred was after 9/1/97 (the date of the amended exception language) BUT applying that to assault enhancements, the post 9/1/97 cases still aren't available for enhancment b/c of the "disqual & disabil" proviso. Tell me I'm wrong (please!) and I'll happily head to the nearest tanning salon and turn red-cheeked! (I'm still trying to goad Jana!)

I think that the courts want us to read the statutes together and harmonize, so when the legislature passed the "use of deferred's" enhancement statute for assaults, that created it's own exception to the disabilities deal. Plus, when they say disabilities they mean right to vote and stuff, right? they don't mean "we may use this as an enhancement..."

Since Scott treats the collateral consequence of increased punishment for another offense as an increase in punishment for the first offense and says the defendant was entitled to rely on the statutory restriction in effect at the time he pleaded guilty or no contest for all time, I can only agree with you Tanya that the use of 22.01's deferred=conviction provision for offenses prior to 9-1-97 would be in violation of the ex post facto clause (as erroneously interpreted in Scott). I think Rob is right as far as the 22.01 amendment controlling over the conflicting disqual. and disab. provisions of sec. 5. Construing the two statutes together, even without adding an exception to sec. 5, the legislature did away with the Scott "statutory restriction" for family member assault cases. At least I sure hope that is how the Scott issue is resolved. Anyone know if a petition for cert. is planned in Scott? Can you logically mesh the following thoughts: "enhancement statutes penalize the new criminal offense being enhanced rather than the prior offense used for enhancement: The punishment is for the new crime only . . .The statute, imposing a[n increased] punishment on none but future crimes, is not ex post facto" with "Punishment for the [old] offense is increased by the removal of the statutory restriction"?

[This message was edited by Martin Peterson on 11-10-01 at .]

The court would probably agree with that, but for the idea that the Legislature, in 42.12, "promised" the guy when he got his deferred that we wouldn't impose any other collateral consequence when he took his deferred. However, I agree that use of something for an enhancement of a criminal penalty isn't a "collateral consequence." I think a "collateral consequence" is that you can't vote or become a barber.

Thanks for your reply, Martin. Rob, after we spoke on the phone, I hopped a plane to NYC and back, so I'm just now returning to this issue. I would love to agree with your interpretation of the "disqual and disabil" language (voting and barber-ism), but the Scott opinion (section 3) decides that enhancement of punishment is a disqual/disability within the meaning of 5(c) and they find that the Lege recognized this fact when they amended the statute to add the exception for 12.42 enhancements, plus the opinion states that the disqual/disabil clause should be read broadly (based on prior CCA interpretations of it). So your interpretation of it as limited is pretty much deep-sixed, I'm afraid. Thus, I'm still under the belief that, at least for old deferred cases (pre-9/1/99 adjudications), we cannot use them. (effective date of 22.01's amendment). Are we okay on using the post 9/1/99 adjudications for enhancement purposes, in spite of the lack of an exception in section 5, since more recent enactments control?

I think the answer is yes. Because now the guy is on notice that if he takes a deferred after the effective date of that statute, there is a special little consequence -- the use of the deferred for enhancement purposes -- that lives on after the deferred is done.

I also went back and reread Scott; and you are right; they include the use as prior as a "collateral consequence." Doesn't seem right...

One other reason Scott is wrong is the word "conviction" as used in 42.12 sec. 5 (c) is not the same as "convicted" as used in 12.42 (c)(2)(B) because 12.42 (g)(1) modifies the normal sense of the word "convicted" to include a defendant who "entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication". The defendant is not being deemed "convicted" in the traditional sense, but rather the meaning of "convicted" is being modified to include his situation. Subsection (g) never uses the phraseology "shall be deemed to have been convicted". This is the same thing that occurs in art. 62.01 (5)(I), C.C.P. when a reportable conviction or adjudication is defined to include "a deferred adjudication" (without regard to whether defendant received a dismissal and discharge for the purposes of disabilities). Further, an increased penalty is not a disqualification or disability unless you construe it to "disqualify" the defendant from the range of punishment which would otherwise apply. I would view the prior deferred proceeding as a qualification for enhanced punishment and thus not within the "restrictions" of sec. 5 (c). Maybe if this argument is presented in an enhanced assault case, the court will choose to rethink the Scott rationale. I'm beginning to get a bad feeling about where Cuellar (discharged felon in possession of firearm case) is headed too.

Sadly, Lee Hon has advised me that neither his office nor apparently the Atty Genrl will seek to have Scott overturned, so it is here to stay for a while at least. One other thought why it was wrongly decided: the statute speaks of disabilities "resulting from the offense or crime of which he has been convicted". In neither the case of a new assault nor an increased penalty for a new sex offense are we speaking of something resulting from the old offense. Sure, the old offense is part of the basis, but what really causes the result is the new conduct. The old conviction is dormant or inactive without that catalyst. This same argument seems to apply in Cuellar despite what the AG said in Op. JC-0396 or what Judge Johnson may think.

The Third Court of Appeals helped prosecutors this week in a case involving the enhancement of an assault with a prior family violence assault. Seems the prior judgment did not contain an affirmative finding as to family violence, so the trial court "suppressed" the use of the judgment. On appeal, the Court of Appeals held that the State could still prove the existence of prior family violence without such a finding in the judgment. Perhaps Erik will post this new case for us this week.

Just a few more thoughts about what ex post facto really means, courtesy of the 8th Circuit in Pfeifer, 371 F.3d 430: "A statute violates the Ex Post Facto Clause if it applies to events occurring before its enactment and alters the definition of criminal conduct or increases the punishment for a crime. * * * It is immaterial that the predicate offense occurred before 922(g)(9) was enacted. "A law is not retroactive simply because it 'draws upon antecedent facts for its operation.'"