## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

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K I M B E R L Y S H E R V O N G A R R E T T , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E F I F T H C O U R T O F A P P E A L S

D A L L A S C O U N T Y

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S E Q U E A S I A T U R N E R , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E S E C O N D C O U R T O F A P P E A L S

T A R R A N T C O U N T Y

K E L L E R , P . J . , f

i l e d a d i s s e n t i n g o p i n i o n i n w h i c h W O M A C K a n dGA RRETT & TURNER DISSE NT — 2

J O H N S O N , J J . , j o i n e d . The question befor e us is whether trial judge s have the authority to ext en d a period of probation for persons on defe rre d ad judication for state-jail felonies. After examining various 1 provisions in Article 42.12, both at the t i m e t h ey we re enac ted and as they wer e subsequently 2
amende d, I conclude that trial judg es do not have that authority

. A. What the Legislature D id
I n 1 9 9 3 , t h e leg islature crea ted a new gr ade of offe nse called the s tate-ja il felony

. At t h e 3

same time, the l egi s l ature added Section 15 to the probation statute (Article 42.12 of the Code of Criminal Procedur e) to acc ommodate state-jail felonies. Section 15 outlined the availabilit y and l en gt h of “reg ular” probation i n state-jail felony case s. Subsection 15(b) gove rned when a jud ge 4
could extend a period of reg ular probation. Meanw hile, Sections 3 and 4 o f the probation 5
statute—which had previously outlined the availability and leng th of reg ular probation in all case s—

wer e amende d to exc lude state-jail felonies. The legi s lature also amende d Sections 3 and 4 to 6 permit a judge to extend a period of probation “in the manner provided by Section 22(c) of this

“Probation” a

nd “community

supervision” a

re inter chang eable terms. 1
T E X
. C O D E C R I M
. P R O C
. art. 42.12. 2 See Acts 1993, 73 L eg ., S.B. 1067 (e nrolled ver sion), §1.01, lines 43-1 to 43-23. 3 rd See id. , § 4.01, lines 379-12 t o 3 8 2 -1 1. As the C ourt corr ectly observe s, Section 15 has 4 alway s been limited to situations i n which a person has been convicted and, so, has no application to persons who a

re pla ced on de fer

red a djudication. See Court’s op. at 10-11. Id. , lines 379-21 to 379-26 (Ar t. 42.12, § 15(b)). 5 Id. , lines 339-15 to 339-20 (Art. 42.12, § 3(e) (2)) , and lines 342-12 to 342-17 (Art. 42.12, 6 § 4(d)( 2)) (“A defe ndant is not elig ible for community supervision under this section if the defe ndant

. . . i s sentenc ed to serve a term of confine ment under Section 12.35, Penal Code.”). For jury

rec ommended probation, the statute was later amende d to exclude only state-jail felonies for which the imposit ion of probation was automatic under § 15(a)

. See Art. 42.12, § 4(d)( 2) (cur rent version).GA RRETT & TURNER DISSE NT — 3

article .” An identical ref ere nce to Section 22(c) was added to Section 5, the defe rre d-adjudica tion 7
statute. The legislature did not add a refe renc e in Section 5 to Section 15(b), the state-jail felony

8

counter part to Section 2 2 (c), even though the lang uag e in the latter two provisions was virtually identical with re spect to the proc edure for e x tending the per iod of community -super vision. Wit h

9
respe ct t o whether

and how long community supervision could be ex tended, Section 22(c) , which

was ne w, provided in re levant par t: The judge may extend a period of community supervision under this section as often as the judge deter

mines is n ec es s ar y , but in no case may the period of community supervision in a first, second, or third degree felony case exceed 1 0 y ear s or the period of c ommunity

supervision in a misdemeanor case exceed thre e y ear s. 1 0
B. What it Means
I n construing a statute, we seek to eff ectua te the leg islature’s collective intent. We discern 1 1
that intent solely from the literal t ext of t he st atute unless the tex t is ambiguous or le ads to absurd results that the l eg islature could not have possibly intended. When analy

zing t he li tera l text , we 1 2

S.B. 1067, § 4.01, lines 339-12 to 339-14 ( Art. 42.12, § 3(d) ) and lines 342- 9 to 342-11 7 (Art. 42.12, § 4( c))

. Id. , lines 345-13 to 345-15 (Art. 42.12, § 5(a) ) (“A judge may i n cr ea s e t h e maxi mum 8 period of c ommunity

supervision in the manner provided by

Section 22(c) of this article.” ). Compare id. , lines 379-21 to 379-26 (Art. 42.12, § 15(b)) (“A judge may extend a period 9 o f community supervision under this section at any time during the period of community s u p e r v is io n , o r i f a m o t i on for revoc ation of community supervision is filed befor e the period of community supervision ends, before the first anniver sary of the expiration of the period of community superv i s i o n . ”) t o i d

. , lines 407-1 to 407-5 (Art. 42.12, § 22(c) ) (“A court may extend a period of community supervision under this section at any time during the period of supervision or, if a motion for revoc ation of community supervision is filed befor e the period of community supervision ends, befor e the f

irst anniversa

ry of the da te on which the pe riod of super vision ex pires.”)

. Id. , lines 406-23 to 406-27 (Ar t. 42.12, § 22(c)) (empha sis added). 1 0 Harris v. State , 359 S.W .3d 625, 629 (Tex. Crim. App. 2011). 1 1 Id. (citing Boyk

in v. State , 818 S.W .2d 782, 785 (Tex. Crim. App. 1991)). 1 2GA RRETT & TURNER DISSE NT — 4

rea d words and phrase s in context, construing them acc ording to the rules of g rammar and usag e, and

we presume that eac h word, phrase , clause , and sentenc e should be gi v en eff ect if rea sonably possible. I f the text is ambig uous or leads to absurd results that the leg islature could not have

1 3 possibly intended, we may

consult ext ra- text ual source s of information. 1 4
The Court contends that the lang uag e of Section 22(c) is ambig uous. Even though the rele vant portion of Section 22(c) ref ers to ever

y g rade of offe nse but the state-jail felony , the Court divides that single sentenc e (quoted above) into two parts, with the first part aut h o ri zing the trial
court to extend the period of probation and the second part (involving the ref ere nce to g rade s of offe nses) restric ting how long such an extension ca n be. This c onstruction leave s an obvious hole in Section 22(c) : How long can (def err ed adjudication) supervision for a sta te-jail felony be extended?
To fill that hole, the Court looks to the defe rre d-adjudica tion provision (in Section 5) that
say s, “I n a felony case , the per iod of community supervision may not e x cee d 10 y ear s.” But that 1 5 provision c overs all classes of felonies, not just state-jail felonies. I f that provision is sufficie nt to fill in the hole cre ated by the Court’s construction of Section 22(c) , why does Section 22(c) need to

even contain the phrase “first, second, and third deg ree felony ”? By using Section 5(a) to fill the hole cre ated by the Court’s construction of Section 22(c) , the Court rende rs the phrase superf luous. And at the time Section 22(c) was passed, the Court’s construction would have rende red the phrase superf luous, not just in the defe rre d-adjudica tion context, but also for reg ular probation, beca use the

Id. (citing Lopez v. State , 253 S.W .3d 680, 685 (Tex. C ri m . Ap p . 2008), and State v. 1 3 Hardy , 963 S.W .2d 516, 520 (Tex. Crim. App. 1997)).

Id. (citing Boyk

in ). 1 4 Art. 42.12, § 5(a ). See also S.B. 1067, § 4.01, lines 345-10 to 345-12. 1 5GA RRETT & TURNER DISSE NT — 5

sections that addre ssed reg ular probation for non-state- jail felonies (Sections 3 and 4) also provided,
“I n a fe lony

case . . . the maxim um period of c ommunity supervision is 10 y ear s.” 1 6
Moreove r, with respe ct to reg ular probation, the 1993 amendments unambig uously cre ated
two separ ate trac ks: state-jail felonies wer e g overne d entirely by Section 15, while case s involving all other g rade s of offe nses wer e g ov er n ed by Sections 3, 4, and 22(c)

. The omission of any ref ere nce to state-jail felonies in Section 22(c) meshes perf ectly with this two-trac k scheme

. Section 22(c) made no ref

ere nce to state-jail fe l o n i es because it was not intended in the reg ular-pr obation
context to have any application to sta te-jail felonies. Given that Section 22(c) manifestly does not apply to state-jail felonies in the reg ular-pr obation context, we should be hesitant about apply ing it
to such case s in the defe rre d-adjudica tion context. Had the leg islature intended to permit judge s to extend the period of defe rre d -a djudication probation in state-jail felonies, it could have clea rly indicated that intent by including a ref ere nce in Sec tion 5 (the defe rre d-adjudica tion statute) to the state-jail felony provision g overning such extensions, S ection 15(b) . The log ical conc lusion to be d ra wn from that leg islative choice is that the leg islature did not intend to permit extensions o f defe rre d adjudication in state-ja il felonies. Given the above considerations, we should not parse the sentenc e in Section 22(c) to cre ate

a limit ation upon t h e t i m e period for extensions that is separ ate from the authorization for extensions. Rather, that single sentenc e sets forth both the authorization for and the time limit ations
upon extensions for the g rade s of offe nses to which that sentenc e ref ers (all g rade s of offe nses but the state-jail felony ). T h i s co nstruction rea ds the opera tion of Section 22(c) in the defe rre dadjudication context in harmony wi t h h o w it opera tes in the reg ular-pr obation context, and this

S.B. 1067, § 4.01, lines 339-6 to 339-9 (Art. 42.12, § 3(b)) and 342-5 to 342-8 (Art. 42.12, 1 6 § 4(b) ( ref

err ing to § 3( b)))

.GA RRETT & TURNER DISSE NT — 6

construction av o i d s cre ating a hole in Section 22(c) or rende ring portions of that provision superf luous. Given the requirem en t t o re ad statutes in context and g ive meaning to eac h word, phrase , and sentenc e, I conclude that the literal text of Article 42.12 require s a holding that Section 22(c) does not apply t o defe rre d adjudication for a state-jail felony and that trial courts have no authority to ext end the pe riod of def err ed-a djudication supervision in state-jail fe lonies.
Even if Section 22(c) wer e ambig uous, the Court’s discussion of extratex tual fac tors is not
persua siv e. The Court first arg ues, “I t is hard to imag ine any conce ivable leg islative policy to be

serve d by providing for the extension of the period of defe rre d community supervision for all other
g rade s of felony , and for misdemeanors, but not for state-jail felonies.” The answe r to the Court’s incre dulity is that, from the start, the leg islature chose to trea t state-jail felonies differ ently from all other g rad es o f o ff

enses. When the state-jail felony was first cre ated in 1993, the leg islature mandated that all state-jail felony convictions would initially result in the suspension of the sentenc e and the place ment of the offe nder on probation. No other class of offe nse, felony or misdemeanor, 1 7

car ried automatic probation. Moreove r, the leg islature made n o e xc e p ti o n to the automatic probation require ment for convictions that occur red upon adjudication of defe rre d-adjudica tion probation.
Be cause an offe nder was g uara nteed a second period of probation upon adjudication, the leg islature might not have wanted to allow extensions of the initial period of defe rre d adjudication for state-jail felonies.
Moreove r, subsection 15(b) p ro vided, “A judge may extend a period of community supervision under this section at any time during the period of community supervision, or if a motion for revoc ation of community supervision is filed befor e the period of community supervision ends,

Id. , lines 379-12 to 379-15 (Art. 42.12, § 15(a) ). See also State v. Mancuso , 919 S.W .2d 1 7 86, 88-89 (Te x . Crim. App. 1996).GA RRETT & TURNER DISSE NT — 7

befor e the f

irst anniversa

ry of the e x piration of the pe riod of community supervision.” The ve ry

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same subsection also provided, “The maxi mum period of community s u p er v ision a judge may impose under this section is five y ear s.” Even if there is some ambig uity in Section 15(b) reg arding 1 9
whether the five-year maxi mum applies to the initial probation period or to an extension of the probation per i o d , it is clea r from the outset that Section 15 contained its own mecha nism for extending the period of reg ular probation in state-j ai l fe l o n ies and that the leg islature did not incorpora te that mecha

nism int o the def

err ed-a djudication statute. The Court further say s that the “haze” reg arding the leg islature’s intent was lifted when the leg islature added the “g ood cause ” require ment to Sec tion 22( c) in 2007. The Court relies heavily
upon a passag e from a House Resear ch Org anization Bill Analy sis that seems to sug g est that Section 22(c) allows judg es to e x tend probation periods for state-jail felonies (as well as for other fe lonies and misdemeanors)

. The passag e in question is part of the “bac kg round” secti o n of the bill

an al y sis, and it does not appea r in either the House Commi ttee Report or the Senate Resear ch 2 0 2 1
Center’ s Bill Analy sis. I cannot ag ree that this isolated, backg round passag e in a House Resear ch 2 2 Org anization repor

t for a 2007 bill constitutes an acknow ledg ment by the leg islature of its intent in

S.B. 1067, § 4.01, lines 379-21 to 379-26 ( Art. 42.12, § 15(b) ). 1 8 Id. 1 9
House Rese arc h Org anization, Bill Analy sis, H.B. 1678, 80 L eg ., p. 2 (Apr. 24, 2 0 t h 2007), http://www.hro.house.state.tx.us/pdf/ba80r/hb1678.pdf. House Corre ctions Commi ttee, Committ ee Re port Bill Analy sis, C.S .H.B . 1678, 80 2 1 t h L eg ., passim (Apr. 12, 2007) , http:// www.c apitol.state.tx .us/tlodocs/80R /analy sis/pdf/HB01678H.pdf

. Senate Rese arc h Center, B ill Analy sis, H.B. 1678, 80 L eg ., passim (May 13, 2007), 2 2 t h http:// www.c apitol.state.tx .us/tlodocs/80R /analy sis/pdf/HB01678E.pdf.GA RRETT & TURNER DISSE NT — 8

enac ting the 1993 amendments. Even i f i t we re, “one session of t he legislature does not have the
power to decla

re the intent of a past session, and a leg islat i v e const ruction of an act of another leg islature is uniformly held to be entitled to littl e weig ht.” And simply adding a “g ood cause ” 2 3 require ment cannot by

itself cause Section 22(c) to suddenly apply to state-jail fe lonies.
I conclude that the trial judge had no authority t o extend the period of the appellants’ defe rre d-adjudica tion probation. I respe ctfully dissent. Filed: June 20, 2012 Publis h

Ex parte Sc hroeter , 958 S.W .2d 811, 813 (Tex. Crim. App. 1997). See also Volosen v

.

2 3 State , 227 S.W .3d 77, 80 (Tex. Crim. App. 2007) (“B ut in interpreting a prior la w, we g ener ally acc ord little weig ht to subsequent leg islative enac tments.”); Ex parte Erv in , 991 S.W .2d 804, 816 (Tex. Crim. App. 1999) (“Althoug h we have held that subseque nt enac tments by the L eg islature may be some e vidence of their intent in a pr ior version of the statute, we ne verthe less g ive little weig ht to those subsequent ena ctments in interpre ting the pr ior law.” ) (c omparing Schroete r with Brown v. State , 943 S.W .2d 35, 40 (Tex. Crim. App. 1997)).