33rd / 424th District Courts

(attached file in PDF form) MEMO TO: District Attorney Office and Criminal Defense Bar March 4, 2003

Subject: When to Start calculation for 180 days of Court's jurisdiction for Shock Probation (and any other purposes).

Short Answer It is the opinion of the Court that the date of . . . the execution of the sentence actually begin(ning) is the date sentenced and NOT the date the defendant arrives at TDC.

Analysis (briefly) See the dissenting opinion by Miller, J., in Smith v. State, 789 S.W.2d 590 (Crim. App. 1990) wherein it is stated as follows:  * * * Suffice it to say that using these guidelines, particularly numbers (2), (3), (4) and (5) of § 311.021 and numbers (1), (5) and (6) of § 311.023, the correct result in this case is to allow the granting of shock probation to those persons serving time in county jails under a prison sentence. The language "further incarceration in a penitentiary", relied on so heavily by the State, can just as easily be read to mean that the incarceration in jail is enough and that further incarceration, this time in the penitentiary, would be of no benefit. This construction is bolstered by recent amendments to the shock probation provisions, presumably made to accommodate changing times and prison conditions. Much has changed from former Art. 42.12, Sec. 3e(a), V.A.C.C.P., to the current statutory provisions relating to shock probation contained in Art. 42.12, Sec. 6, 7 & 8, V.A.C.C.P. "Further incarceration in a penitentiary" in the former article is now "further incarceration"; "shall request a copy of the defendant's record while incarcerated from the Texas Department of Corrections" is now "shall request a copy of the defendant's record while incarcerated from the Texas Department of Corrections, or if the defendant is incarcerated in the county jail, from the sheriff." While an argument can be made that these almost non-substantive changes evidence a change of heart in the legislature, proper code construction act analysis leads just as easily to the conclusion that the legislature was simply making more clear its original and unchanged intent. That case contains the rationale. Now see C.C.P. Art. 42.12, Sec. 6(a) which is indeed changed as set forth in Judge Miller's dissent. In State v. Dean, 895 S.W.2d 814 (Tex. App. Hou  14th, 1995) PDR ref'd, the Court dealt with the imprisonment point, stating: We find nothing in the applicable code that requires appellees to be imprisoned in the Institutional Division of the Texas Department of Criminal Justice before they are eligible for shock probation. And in an unpublished opinion, State v. Rodriguez, 1997 Tex. App. LEXIS 3976 (Tex. App. Hou  14th, 1997) the same Court extends the reasoning to conclude that "Therefore, applying this reasoning, imprisonment begins from the date the execution of the sentence actually begins, whether the defendant is confined in the Institutional Division of the Texas Department of Criminal Justice or in the county jail. For purposes of calculation the date of the expiration of the Court's 180 day period of continuing jurisdiction under C.C.P. 42.12 Sec. 6(a) the beginning date is the date of sentencing.  Attorney Kurt Corley first raised this issue and provided the Court with a Memorandum of Law that provided helpful insight into the issue which the Court has now examined further in order to be satisfied with the foregoing conclusion.