Section 31.03(e)(4)(D) of the Texas Penal Code makes theft of property under $1,500 a SJF if the defendant has previously been convicted two or more times of any grade of theft.

Can you use a theft of services conviction for one of those prior theft convictions or do only convictions under 31.03 count? (I've found case law that says you can't use Burglary with Intent to Committ a Theft or Forgery, but I wasn't able to find anything about whether a prior Theft of Services conviction could be used.)

This has come up a few times over the years on the forum without a black-letter solution surfacing. The consensus here in the past has been "Ummm... sure. I don't see why not."

I've just scanned through all the cases I can find again and I do not find anything on point.

So... let us know what the appeals court says!