Can a state jail felony conviction be used under PC 12.42 for enhancement of a third degree felony to a second degree felony? �12.42(e) explicitly states that conviction of a SJF is not alloweed for enhancement under subsections (b)-(d), but enhancements for third degree felonies are covered in subsection (a) and don't seem to be included within the subsection (e) prohibition.

The plain language of the statute does seem to permit the use of a SJF for enhancement of a third degree felony. But, the Court of Criminal Appeals has not always read such plain language to mean what it says. See Campbell v. State, 49 SW3d 874 (Tex. Crim. App. 2001). The current version of the PC as to enhancement of a third degree felony is something of a legislative mistake that occurred when some of the provisions were moved around in 1995. Before 1996, you clearly could not use a SJF to enhance a third degree felony. See Acts 1993, 73rd Leg., ch. 900, sec.1.01 (adding PC sec. 12.42(e)).

In The Perfect Plea I took a conservative approach and indicated the prior felony should be a nonstate jail felony offense. See chart on p. 33. For those that like to litigate, I say, give the state jail felony a try.

[This message was edited by John Bradley on 02-26-04 at .]

[This message was edited by John Bradley on 02-26-04 at .]

[This message was edited by John Bradley on 02-26-04 at .]

At least one court has adopted the plain language interpretation. Cupit, 122 S.W.3d 243 (enhancing Third Degree theft to Second Degree based on prior SJF conviction). At least now you have a good reason to litigate the issue.