FSTRA says punishment is up to 1 year in the county the jail; up to five confinement in TDCJ; a fine or confinement and a fine.

There is some discussion that there would be an illegal sentence if the jury gave the defendant say 6 months TDCJ.

My position is the plain language of the statute says up to 5 years...which means there could be any minimum amount in TDCJ.

What's your take and what's your authority?

Any help would be appreciated, we've got someone in trial dealing with this right now.

I don't have any authority but my thoughts are that since the minimum on 3rd and 2nd degree felonies is 2 years that this would be the minimum for felons who are TDCJ bound.

However. whenever doing plea papers I write in the range as "up to five years" as written in the statute for the admonitions part.

If a sentence was to be given of 1 year or less, it would seem like the statute designated that to be served in county jail, would it not?

Shannon or JB, do you have an opinion?

[This message was edited by GG on 07-23-10 at .]

I have never liked the special range for that statute. It needs to be changed to be a state jail felony (changed recently to bump up to straight third degree felony if serious bodily injury or death). But, in general, "up to" language sets no minimum.