Here's a new one on me (and you know what they say about old dogs and new tricks).

The case is a SJ delivery bumped up to a 3rd degree under 481.134. For the punishment charge, I can use language that follows 508.145 Gov't Code (no parole or good time for the first 5 years).

But what about a sentence that exceeds 5 years? Do the standard rules for non-3g offenses kick in after the first 5? I can modify the language from 37.07 to apply only to the 'excess', but is that in fact how TDCJ will calculate things? Any input would be appreciated.

Subpoena the senator that wrote the bill and ask him to explain it.

Potter County ADA Richard Martindale has a detailed article about drug-free zones that you can find in the latest edition of The Texas Prosecutor. The article concludes with a discussion of the parole ramifications of such a finding:

"Keep in mind this provision is particularly effective on 2nd- and 3rd-degree felonies, but the statute may have some adverse consequences with sentences in excess of 20 years, as the defendants in those cases appear to become parole-eligible at the five-year mark, even if one-quarter of their sentence term would be greater than five years."

As I understand the statute,and that is saying something, since that is a craaazy statute anyway - but you just have to get the point across in you charge that they must serve all of their sentence up to the first 5 years before becoming eligible for parole. You would word it in a similar fashion to a 3g in 37.07 (4)(a)-...If the defendant is sentenced to a term of five years or less, he must serve the entire term of his sentence, without consideration of any good conduct time he may earn .

Hope this helps.

...then go on with -If the defendant is sentenced to a term of more than 5 years, he must serve a minimum of 5 years, without consideration of any good time he may earn, before he is eligible for parole...

My draft follows your line of thinking, JScoggins. But I was basically guessing that the usual rules would start to apply after 5. It seems logical, but that doesn't seem to mean anything in today's world.

I've read the article in the latest Prosecutor and it was very helpful, but my take was that the author was also guessing a bit on this subject. Something doesn't seem right about making 5 the effective maximum sentence.

[This message was edited by johnwestbrook on 06-06-08 at .]

After more review, it seems the only place the 'flat time' provision is mentioned in any statute is in 508.145, which is essentially a directive to TDCJ on how they must calculate release dates. Although the legislature has had the opportunity to modify 37.07 to match, it has declined to do so.

That being the case, I'm looking at 37.07(4)(c) which mandates the standard parole/good time language be used for all 2nd or 3rd degree cases not specifically distinguished (3g, etc). So should I and my Judge presume the legislature made a mistake, ignore the statutory mandate, and supplant our judgement for theirs? If that's the case, we're going to be real busy.

Even though the 37.07 language gives less than full disclosure on this point, could an appellate court reverse a case because we used the legislatively-mandated language instead of creating our own? Sure seems doubtful. It doesn't feel quite right to mislead the jury, but the sentences would probably tend to be longer if the flat-time bit was left unsaid.

quote:

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Originally posted by johnwestbrook:
Something doesn't seem right about making 5 the effective maximum sentence.

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Well, it's not really the maximum sentence, it's just the latest time at which the inmate becomes eligible for parole.

And yes, it doesn't make any sense. But as you pointed out, if you ignored all the laws that don't make any sense, there wouldn't be much left to go on.

Trust me, getting 5 years of real time before parole eligibility in a drug case, regardless of the sentence, is a step forward.