Okay, prior to 9/1/01, a DWI prior where the defendant was convicted more than 10 years prior to a new charge could only be used to enhance the charge under TPC 49.09 if the defendant had another DWI conviction within 10 years of the charged offense. The amendment from the last session expanded the cutoff date for a prior until the latest of date of conviction, date of discharge from probation, date of discharge from parole, or date of discharge of sentence.

I may be reading it wrong, but the amendment also changed the relevant date for the intervening DWI for convictions where the cut-off date is more than 10 years before the date of the new charge. Instead of relating to the new charge, I read it as the intervening DWI date must be within 10 years of the prior. Is that right? The committee report and the legislative update book just say you can't use a prior more than 10 years old, but that doesn't seem right either.

So, as I read it, if you have a prior that cut of 13 years ago, and a prior that cut off 2 years ago, you can't use the 1st prior to enhance the current charge because of more than 10 years between priors. Weirder still, as I read it, if you have a prior that cut off 13 years ago, and a prior that cut off 12 years ago, you can use the older prior to enhance, but not the newer. I also think the Enhanced DWI Punishments table on page 130 of TDCAA Criminal Laws of Texas is wrong--I think it is based on the old law (sorry Diane!).

One of our senior trial prosecutors says I have it all wrong. Do I need a remedial statutory reading course?

Subdivision (e) has three tests which apply to the use of any particular prior. (c)(1)(C) includes all offenses back to 1984 (since all are considered final under (d) and there has been no valid deferred adjudication since then). So any prior will qualify under (e)(1), making that test superfluous. (e)(2) compares the date of commission of the current offense to a date with respect to the prior, (e)(2)(C) likely being the longest possible time period. (e)(3) merely restricts the exclusion for those offenses that would be unavailable under (e)(2). (e)(3) is the part the defense will be unable to show. It also represents the only change in the law-- namely the prior conviction may have been entered more than ten years before the current offense and still be usable to enhance because the defendant did not go 10 years from the date of his last release without re-offending. I would not plead (e)(3) in the indictment-- it is a defensive matter. "The latest date under Subdivision (2)" in (e)(3), seems different from "the latest date on which ... for the previous conviction" language used in (2). But, I agree with your example that a discharge 13 years ago followed by a conviction and discharge more than 10 years ago makes neither prior useable, which is really no change from the prior law.

[This message was edited by Martin Peterson on 09-16-02 at .]

My recollection of what they meant to do is this:

Permit the use of any prior DWI conviction, regardless of its date of offense or convictions, so long as the defendant had at least one prior DWI conviction with a sentence that did not conclude more than 10 years before the date of the current offense being prosecuted.

The idea was to prevent the defendant from getting the benefit of delaying the date of his prior conviction (by getting 2 years of resets) or by having the time he serves on the sentence count against the 10 years.

In the most extreme example, under the old law, a guy could finish a 10 year probation for felony DWI, get a new DWI, and have no useable prior DWI's. Under the new law, all of those prior DWI's would be available.

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So, as I read it, if you have a prior that cut of 13 years ago, and a prior that cut off 2 years ago, you can't use the 1st prior to enhance the current charge because of more than 10 years between priors.

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Correct. But ...

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Weirder still, as I read it, if you have a prior that cut off 13 years ago, and a prior that cut off 12 years ago, you can use the older prior to enhance, but not the newer.

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"Not so fast, my friend" (w/ apologies to ESPN's Lee Corso). The new language in (e)(3) says "within 10 years OF the latest date under Sub. (2)" -- not 10 years before. So, you can use the 12-year-old prior because D had another one a year earlier, which is "within 10 years OF" the 13-year-old prior, even if it occurred afterwards.

So, if you've been clean for 10 years post-DWI-discharge, you get a new DWI, you finish that DWI sentence, and you go 10 years without another, the DWI can't be used against you. In other words, I don't think it allows us to use a 1971 DWI conviction to enhance a 2001 DWI offense if the only intervening prior is in 1997, for example. Basically, you get a freebie every twenty years.

Or at least that's how I read it.

Shannon, doesn't "of" have to mean "after". Do you really think you only get the slate cleaned every 20 years? I guess the new law is even more powerful than first occurred to me.

If I'm right about any conviction having to meet all three tests in order to become unuseable (by virtue of the "and" at the end of (2)(D)), then the oldest convictions will always be useable so long as they were within the 20 year window. Passage of time won't change the fact that the defendant was convicted of another DWI within ten years before a particular prior.

[This message was edited by Martin Peterson on 09-16-02 at .]

So, under Shannon's reading, if a defendant ever gets two DWI's within 10 years, he's a permanent felony case in any future DWI, no matter how much time passes after the second DWI.

OK. Maybe I'm out of touch here but I don't see it being as difficult as this post makes it seem.
Based upon my involvement with the bill that made the change, and my reading of the statute, and the case law (Smith v. State 1 S.W.3d 261 (Tex. App. - Texarkana 1999 amd Castillo v. State, No. 03-00-00185CR (Tex. App. - Austin 2001) the rule is as follows. So long as you have one DWI prior that falls with 10 years of the new offense date (and under the new law it "falls within" if it is less than 10 years from the date the Defendant was released from jail, prison, probation, or parole) it doesn't matter how old the second prior is so long as it qualifies as a final conviction. The only intent behind the change in 2001 was to change the computation on the 10 year rule from the offense date to the release from probation, parole, incarceration date.

I don't dispute the intent of the folks who made the change, but the fact of the matter is that the words say something confusing and different. The date in 49.09(e)(3) appears no longer to relate to the current charge, but to the prior. Moreover, the report issued by the committee whose intent is most at issue doesn't comport with the recollections of JB or RA, although everyone on the board trusts those recollections completely if it comes to a swearing match.

Do the hypotheticals presented create an absurd result, or simply a different result than that intended? Is an amendment needed?

Smith and Castillo were under the old statute.

[This message was edited by John Rolater on 09-17-02 at .]

JR, my recollection (refreshed by some old notes) is that there is no usable legislative intent to speak of on this change in the law b/c it was tacked onto HB 2250 by Rep. Ray Allen on the House floor -- which is almost always a recipe for disaster. Sen. Mike Moncrief tried to fix it in the Senate, and his changes were an improvement, but perhaps we still need some "clean-up" next session.

So, what would WE like to see done?

Is it as simple as changing (e)(3) from "within 10 years of the latest date under Sub. (2)" to read "within 10 years of the date of the offense for which the person is being tried"? Would that be more in keeping with what we all think the intent was?

I don't know that it is that simple. It looks like they meant to expand the 10 year rule in (e)(3) the same way they did it for (e)(2), just unsuccessfully. I tried a couple things but nothing felt good.

I have a case where I would like a very literal interpretation of the statute. The Defendant will either be convicted of a Class B misdemeanor or as an habitual criminal (25-life). He was arrested for DWI 8-16-02. His last previous DWI was a felony in Dallas on which he was sentenced to 3 years on 1/23/87 (offense date was 8/30/85, but he originally received a 5 year sentence suspended for 5 years). He was released on mandatory supervision (is that "parole" for the purposes of (e)(2)(C)?) on 7/24/87. The scheduled "period of parole" was until May of 1990. But in January of 1990 he committed a UUMV offense, for which he was not sentenced (to 10 years) until October, 1990. It does not appear his DWI parole was revoked (though he clearly violated one of its conditions). Can he say that his 1985 DWI cannot be used to enhance under (e)(2)(A), since he arguably never was discharged from the period of community supervision, nor successfully completed the period of parole on which he was released in July, 1987, nor completed serving his sentence while confined or imprisoned for the DWI offense? Or can he say that the ten years ran from May, 1990? And, since his second previous DWI conviction was a 5 year sentence in 1984 (within 10 years of 1985, 1987 or 1990), does that mean he is still subject to enhancement under (b)(2) of 49.09? Shannon will you help me write the brief in this one (assuming I can get the trial judge to go along?) I may even need your help in explaining it to the Grand Jury!

Martin,

First understand that I still disagree with John's interpretation of the enhancement language so if you think he is right you probably won't agree with what follows. This seems like an easy one to me. There is clearly more than ten years between the new offense in 2002 and the closest in time prior which by my math would give us a date of 1-23 1990 as the latest date to compute the conviction from. So what you have is a misdemeanor.

I have struggled to understand the previous posts theory but I think it comes down to logic and common sense and as has been shown above to read it as John does creates results that just don't make sense (ie you can use the older prior but not the more recent one?). I will grant that the statute could have better wording but I stand by my post and my understanding that logic and consistency does have a role in statutory interpretation.

Kill the messenger. Unfortunately, my copy of Criminal Laws of Texas doesn't come with a pop-up of Senator Lozmaflotz to explain to me (and the judge) what the Leg. intended with every floor amendment someone tacked on in the waning days of the session.

Until that happened in this case, the law was the same as it always was--if another DWI within 10 years of the current charge, you can use old priors. Now we have completely different language that seems useable, albeit weird.

We're talking about much more than merely determining what the Leg. meant with a particular use of an ambiguous or vague word, e.g. "felony." The statute now makes specific reference to a completely different date than it used to, the date of the prior discharge rather than the date of the current offense. They deleted 15 words and added 5 referencing dozens more. Using the applicable rules for construction, I just don't see how you can construe it to say exactly what it used to say.

Could Senator Moncrief's amendment have come from a different bill?

[This message was edited by John Rolater on 09-18-02 at .]

It might be helpful to add an alternative that would allow the state to prosecute DWI as a felony on proof that the Defendant has previously been convicted of Felony DWI, which would seem to cure the "problem" of DWI Felons going to the pen, then committing the offense again, but the priors being too remote because of the length of time the defendant was in the pen. I think this was one of the reasons for the most recent changes. This would also allow the state to use a pen pack to prove up the prior felony DWI conviction, which might be faster than obtaining copies of misdemeanor priors.

I like that idea, Frank. It is similar to JB's rap-sheet theory for proving criminal history. I think I like his idea better, no offense.

How about making it a felony unless the defendant proves he doesn't have two prior DWI's? Or how about letting us use a DPS driving history? Why do we play so many games with criminal histories?

One of our Felony Trial Attorneys has done quite a bit of leg work in the past two days on this issue. Here are her findings:
Subsection (e) as we know it came about through a floor amendment on May 21, 2001, by Sen. Montcrief. It was proposed as legislative clean-up, removing duplicative language the House left in their version, was to avoid confusion (failing miserably), and "makes no substantive changes in the Bill." All of this was taken from watching the archived webcasts from the Senate website. This floor amendment changed our clearly worded, already litigated language. The legislative intent here is clear. It just doesn't make any sense for our powers to be expanded up front, only to be curtailed at the end.
FYI: Richard Alpert has a clean-up version of this that does away with the ten year rule entirely.

JB, we are required to play games with criminal histories because the defense-oriented (dominated?) legislature likes things the way they are.

Richard, the case I referred to was turned over to the County Attorney. I agreed with you that it required too much stretching of the statutory language to make it fit. Fortunately, I have been assured that the Parole Board will take action on the remainder of the defendant's prior 20 year sentence even though he is prosecuted only for new misdemeanor offenses. The case actually had another interesting twist: the defendant escaped from custody after his arrest (but before arriving at the county jail). Assuming the officer intended to make a felony DWI arrest, was it a felony escape, or always only a misdemeanor (because the defendant was not in fact subject to felony DWI prosecution)?

Any chance y'all could email or fax Richard's fix to me?

How is the quality on the webcast archives? Will it do away with the tapes?

John -- the tapes are out, at least for the last session. You can pull up any committee meeting, hearing on the floor, etc, and not just hear it, but watch it. In ours, we watched Moncrief take the podium and discuss the bill's late amendment. It's all on RealPlayer, so it's basically like a TV. I'm assuming that the upcoming Lege's sessions will also be taped, so it's pretty convenient.

If you have questions about the legislative history we found, contact Tracy at tkapsidelis@tarrantcounty.com. She's done excellent work in preparation for her motion to quash.