While HB51 "fixed" the original omission in 49.09(d), it did not add 49.045 to the list in 42.12 sec. 5 (d)(1)(A). Does that mean we are encouraged to utilize deferred adjudication in "appropriate" cases of DWI (aggravated by the presence of a child passenger)? If so, then this decision by the Legislature seems kind of strange.

Martin, baby, you gotta have faith.

HB 51 is a beeeeautiful piece of work. With one little sentence in Section 3, the pox of the DWI prior conviction 10-year rule has been removed. The bill repeals subsections (e) and (f), which imposed the complicated, frustrating, crazy, messed up and irrational various 10-year rules.

Let me repeat myself, for DWI offenses committed on or after 9/1/05, you do not need a calendar, calculator or a phone call to TDCAA or Richard Alpert to figure out whether the prior DWI is available to enhance a new DWI.

I'd say that is something well worth celebrating, Martin, my fellow web-posting pal.

Now, as to the continued exemption of the deferred adjudication DWI with Child offense from consideration as a final convictin, that seems like a mighty small, if not nonexistent, complaint.

And the real answer as to why is that things come in small steps in the Legislature.

Meanwhile, I must stop to do my happy dance. Avert your eyes.

John, no criticism of HB51 was intended. It should definitely scare everyone who has a prior conviction- even those who have been "good" for a while- into designating a responsible driver. Interestingly, the fiscal note did not take into account all of the increased costs associated with the bill. The LBB did us a favor on this one.

I was just wondering why one form of DWI seems to be treated differently.

Martin, you should come on down to the party we call the Legislative Session. Sit in the committee hearings. Watch a bill be drafted. Listen to the debate.

You would find that trying to impose a meaning on a particular result is not always possible. But, in general, the DWI+child law showed how intricate the DWI laws have become. By making one change, you have to look to the many connected, unintended consequences.

HB51 tried to go back and fix some of those unintended consequences. Since a regular DWI can't get deferred adjudication, it would have been difficult to isoloate deferred for DWI+child as yet another special "conviction" defined punishment.

Not all that mysterious.

And, I don't think there are big fiscal consequences to eliminating the 10-year rule. I don't think we capture all that bigger of a felony population. We just don't have to make our brains bleed in figuring it out.

And, don't worry, most of the felony DWI's will get the new and improved (shorter and quicker to terminate) probation promised in HB2193. I'm told that will save lots and lots of money and make probation better than ever. Sort of sounds like a cereal commercial, eh?

According to our Troopers, there is some resistance from prosecutors in connection with Penal Code 49.045. I have had more than one Trooper tell me that his or her DA won't take a Section 49.045 case--they file child endangement charges instead.

Janette Ansolabehere

Will a deferred adjudication for a DWI w/child committed after September 1, 2005 be usable for enhancement of a later-committed DWI? It appears not since 49.09(d) does not include it as a final conviction.

Ken - it appears that deferred DWI with kids will still not be usable for enhancement. So the lesson for habitual DWI types will be to always have a kid in the car with them -- that way they cannot be enhanced to the 3rd degree felony range. Sounds like the legislature has (once again) managed to tackle issues such as suggestive cheerleading while failing to make sense out of the penal code. Reminds me of the stalking / assault situation. If you are stalking someone, then find out the police are watching, go up and hit the person, since stalking is a felony and an assault is only a misdemeanor. That makes no sense.

Here is a general list of DWI bills that have made it out of the legislature and are either signed or awaiting signature from the guv.: HB 51, HB 157, HB 160, HB 904, HB 1357, HB 1646, and HB 2275.

Here is a list of some of the more significant DWI bills that failed: HB 14 (EMT blood draws), HB 645 (3 hour test admissibility presumption), HB 3132 (changes ST-3 requirements), and HB 3241 (Mata fix, ALR fix, etc.).

House Bill 51 is not a cure all; but after spending a good amount of time in Austin this session, it seems that problems only get fixed one small step at a time and with great effort! I would highly recommend it to others and you will see what those folks at TDCAA have to go through every other year.

Warren, I applaud the changes and your efforts in that regard. I simply wanted to make sure my interpretation about deferred adjudication was correct. It would appear to make more sense to file a DWI w/child case as a misdemeanor for later enhancement purposes.

And I'm still wondering why I've never seen John's happy dance.

Jane, it appears he does it only when eyes are averted.

Ken, I agree that there are still major problems with the DWI with a Child law. It appears that a person can still get "Deferred" for this offense even after September 1, 2005 (and 42.12 is going to need fixing to bring the offense in line with other Chapter 49 offenses).

Currently, our office files these as misdemeanor DWI and felony Endangering. I can't speak for my boss, but I am inclined to believe that he will not allow "Deferred" for this offense after August 31. We do not have to waive a jury and can always place the DWI conditions on any probation. However, but for HB 51, the 10 year rule would still be here for another 2 years and DWI with a Child would be totally useless.

Kudos to Richard Alpert, Todd Smith, and Judith Zaffirini for their efforts.

The rumor is that John only does the happy dance when accompanied by A.P. on the banjo(or another skilled in the art of mountain musical entertainment...Brumley can fill you in on the qualifications for this position) ...thus, all you need to do, Jane, is keep a sharp lookout for A.P. or another banjo toting wandering minstrel in the vicinity of your fine burg, and chances are, as long as your eyes are not averted, you might see John's happy dance.

Using the b word does not make it funny. Please, keep down the profanity.

This one was funny.

Martin, the answer to your question is that there is no (good) answer. There was never a conscious decision by "the legislature" to leave the deferred for 49.045 in the law -- there was just no interest in changing it (trust me, we made the problem known, it just didn't get any traction). But then, that's what future legislative sessions are for, I suppose.

Well, if the problem was consciously ignored or purposely not solved, then I guess one can reasonably conclude that regardless of what the intent or object was in 2003 the Legislature put its seal of tacit approval on the pertinent wording of sec. 5 of 12.42 in 2005? I know the courts sometimes use this type of reasoning in determining legislative intent (whether justifiably or not).

Personally, I have an aversion to using 22.041 to criminalize conduct which is now more specifically described in 49.045. See Williams, 641 S.W.2d 236. Hence, I do not necessarily view the Harris County practice as a good alternative.