It's been a long day and I am trying to figure out if we can use both 481.134(b) and (c) to bump a drug case up a degree and increase the minimum sentence to 7 years and increase the fine to $20,000? If so why is the language different in subsections (1) and (2)under (b) and (c)? I am trying to prepare an admonishment exhibit for a set of plea papers and for the Judge.Tired, dumb and lost ADA. Any help would be greatly appreciated.
The Drug-Free Zone law was included in two different bills that were passed in the same legislative session. Each bill had the idea of increasing punishment for certain drug cases committed on school property. One bill did it by simply increasing the punishment to the next highest category. The other bill did it by increasing the minimum confinement and maximum fine.
And it is not so unusual for this sort of messiness to happen in the Legislature.
A few years later, the Court of Criminal Appeals took a stab at explaining which law would apply. See Young, 14 SW3d 748. But the quick answer is you can't do both. You have to figure out which one fits your case. Perhaps, some day, in the next Penal Code rewrite, the Legislature will pick one approach and delete the other one.
Our office is working on a proposed statute intended to incorporate and replace the existing DFZ abomination. We have a State Representative who has indicated to us he would sponsor the bill. If there is anyone who would like to get involved, please let us know. Additionally, we are wanting to have our Representative sponsor a bill which would create a rebuttable presumption of intoxication in DWI breath test cases. I have been told of other states which already have such statues, could someone please point me in the right direction.
The change to the drug free zone statute is welcome. Please delete all conflicting laws and adopt one simple approach that increases the offense to the next category of punishment. Don't put in fancy mandatory minimums or changes in fines. Be consistent with the rest of the Penal Code.
Also, take the chance to fix any Apprendi problems by making it clear that the issue is to be decided at the guilt/innocence stage of the trial by the trier of fact, whether it is judge or jury, by the standard of proof beyond a reasonable doubt.
That last problem was fixed last session for the hate crime statute, but there needs to be a universal fix like that for all conduct enhancements.
Finally, please make the change by avoiding a long list of cross-references to drug statutes. Those cross-references are hard to get correct and inevitably are changed. Just say something like any drug offense is moved up to the next higher category of punishment by a drug-free zone affirmative finding.
And thanks for taking on this job. Good luck lining up the support!
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