Beginning 9/1/05, a state jail felony defendant may seek probation from a jury. Previously, only the judge could consider probation. For pending cases, you may see defendants seeking a delay until 9/1 to take advantage of that change.

Typically, such changes only apply to offenses committed on or after the effective date. But, HB 1759, the bill that made the change, has the following effective date language:

"The change in law made by this Act to Section
4(d), Article 42.12, Code of Criminal Procedure, applies to a defendant who on or after the effective date of this Act files the motion required by Section 4(e), Article 42.12, Code of Criminal Procedure, for jury-recommended community supervision, regardless of whether the offense with which the defendant is charged was committed before, on, or after the effective date of this Act."

That is odd language. What about defendants who already filed their motion for probation? Should they wait until 9/1 and file another one? What about defendants who have trials before 9/1, are their lawyers being ineffective?

Have you seen any problems, yet?

Hey, we have several that made sure one way or another they would get set after 9-1. Just like the "small" dope dealers and other "non-violent", "its only a property crime" offenders, they know just enough to keep it a State Jail and to try and make us deal it away because it is not worth all the expense and trouble for a possible 2 years or automatic probation maximum. Can you tell how much I love State Jail cases?

Some of them though the joke is on them because even though they only have one prior, thus no enhancement, they are still not eligible for probation from a jury, before or after September 1.

John the language is not so odd. It simply recognizes that not one of those defendants who even thought they might get tried prior to 9-1-05 will have elected to have the jury assess punishment (since they would then have had to get the state's consent to change that election). The more interesting question may be whether any defendants get caught by Postell- Graham.

Perhaps odd was not the right word. Unusual. Most effective dates focus on the date of the offense. Some focus on the date of sentencing. This is the first one I've seen that focused on the date of filing a motion, something in the control of the defendant.

There will also continue to be circumstances in which the defendant will receive automatic probation, beyond the drug possession offenses, because of early statutes that had various automatic probation requirements.

This history of the state jail felony is a good microcosm of the schizophrenic approach to the legislature. In ten years, they have monkeyed with the law five times. How can they expect to learn anything about whether it was or could be successful with that much change?

It is hard for schizos to focus on success, and very hard for anyone to measure the success of criminal sanctions. So constant change will continue to be the name of the game. It might be fun to put 42.12 off limits one session just to see what might come to pass!

Just to make it easier on everyone, let's cancel the entire 2007 legislative session.

Hey, I'll vote for that! Unless I fulfill my dream of owning a major portion of a law book publishing company by then.

Hey, wait a minute there, have Kolaches been named the official pastry of Texas yet? We may need a special session for that.

Kolaches are great, but personally my vote goes to "Round Rock" donuts--the best donuts ever. My daughter in Maryland still talks fondly about her Lone Star Bakery runs.

Janette Ansolabehere