I hate when things change. Just when you think you understand the law in Texas, you find out that everything has changed. Well, in this case, they’ve changed, but they are still the same. Ever since I’ve been a lawyer aggravated or “3g” offenses were those that had limited probation availability. However, as of 1/1/17, the entire probation section of the code of criminal procedure has been replaced with……. section 42A!
That’s right, we have a brand new section that is basically a reboot of the old section. This was a cleanup job designed to make the cluster fuck of laws that was chapter 42 well, a little less clusterfucked. If I was starting out as a lawyer, or if I was a layperson who wanted to understand probation in Texas, I’d greatly appreciate the new streamlined 42A.
So what happened to 3g offenses? They still exist. But now they are section 42A.054 offenses. They even come with a title that explains what they are. Here’s the new section-
Art. 42A.054. LIMITATION ON JUDGE-ORDERED COMMUNITY SUPERVISION. (a) Article 42A.053 does not apply to a defendant adjudged guilty of an offense under:
(1) Section 15.03, Penal Code, if the offense is punishable as a felony of the first degree;
(2) Section 19.02, Penal Code (Murder);
(3) Section 19.03, Penal Code (Capital Murder);
(4) Section 20.04, Penal Code (Aggravated Kidnapping);
(5) Section 20A.02, Penal Code (Trafficking of Persons);
(6) Section 21.11(a)(1), Penal Code (Indecency with a Child);
(7) Section 22.011, Penal Code (Sexual Assault);
(8) Section 22.021, Penal Code (Aggravated Sexual Assault);
(9) Section 22.04(a)(1), Penal Code (Injury to a Child, Elderly Individual, or Disabled Individual), if:
(A) the offense is punishable as a felony of the first degree; and
(B) the victim of the offense is a child;
(10) Section 29.03, Penal Code (Aggravated Robbery);
(11) Section 30.02, Penal Code (Burglary), if:
(A) the offense is punishable under Subsection (d) of that section; and
(12) Section 43.05, Penal Code (Compelling Prostitution);
(13) Section 43.25, Penal Code (Sexual Performance by a Child); or
(14) Chapter 481, Health and Safety Code, for which punishment is increased under:
(A) Section 481.140 of that code (Use of Child in Commission of Offense); or
(B) Section 481.134(c), (d), (e), or (f) of that code (Drug-free Zones) if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections.
(b) Article 42A.053 does not apply to a defendant when it is shown that:
(1) a deadly weapon as defined by Section 1.07, Penal Code, was used or exhibited during the:
(A) commission of a felony offense; or
(B) immediate flight from the commission of a felony offense; and
(2) the defendant:
(A) used or exhibited the deadly weapon; or
(B) was a party to the offense and knew that a deadly weapon would be used or exhibited.
(c) On an affirmative finding regarding the use or exhibition of a deadly weapon as described by Subsection (b), the trial court shall enter the finding in the judgment of the court.
(d) On an affirmative finding that the deadly weapon under Subsection (c) was a firearm, the court shall enter that finding in its judgment.