IN THE COURT OF CRIMINAL APPEALS
            OF TEXAS
                       NO. PD-0934-11

        KIMBERLY SHERVON GARRETT, Appellant

                               v.

                   THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
        FROM THE FIFTH COURT OF APPEALS
                 DALLAS COUNTY

                             ***

                       NO. PD-1117-11



              SEQUEASIA TURNER, Appellant

                               v.

                   THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
       FROM THE SECOND COURT OF APPEALS
                 TARRANT COUNTY



   K ELLER, P.J., filed a dissenting opinion in which W OMACK and
                                                          GARRETT & TURNER DISSENT — 2

J OHNSON, JJ., joined.

       The question before us is whether trial judges have the authority to extend a period of

probation for persons on deferred adjudication for state-jail felonies.1 After examining various

provisions in Article 42.12,2 both at the time they were enacted and as they were subsequently

amended, I conclude that trial judges do not have that authority.

                                    A. What the Legislature Did

       In 1993, the legislature created a new grade of offense called the state-jail felony.3 At the

same time, the legislature added Section 15 to the probation statute (Article 42.12 of the Code of

Criminal Procedure) to accommodate state-jail felonies. Section 15 outlined the availability and

length of “regular” probation in state-jail felony cases.4 Subsection 15(b) governed when a judge

could extend a period of regular probation.5 Meanwhile, Sections 3 and 4 of the probation

statute—which had previously outlined the availability and length of regular probation in all cases—

were amended to exclude state-jail felonies.6 The legislature also amended Sections 3 and 4 to

permit a judge to extend a period of probation “in the manner provided by Section 22(c) of this


       1
           “Probation” and “community supervision” are interchangeable terms.
       2
           TEX . CODE CRIM . PROC. art. 42.12.
       3
           See Acts 1993, 73rd Leg., S.B. 1067 (enrolled version), §1.01, lines 43-1 to 43-23.
       4
         See id., § 4.01, lines 379-12 to 382-11. As the Court correctly observes, Section 15 has
always been limited to situations in which a person has been convicted and, so, has no application
to persons who are placed on deferred adjudication. See Court’s op. at 10-11.
       5
           Id., lines 379-21 to 379-26 (Art. 42.12, § 15(b)).
       6
           Id., lines 339-15 to 339-20 (Art. 42.12, § 3(e)(2)), and lines 342-12 to 342-17 (Art. 42.12,
§ 4(d)(2)) (“A defendant is not eligible for community supervision under this section if the defendant
. . . is sentenced to serve a term of confinement under Section 12.35, Penal Code.”). For jury-
recommended probation, the statute was later amended to exclude only state-jail felonies for which
the imposition of probation was automatic under § 15(a). See Art. 42.12, § 4(d)(2) (current version).
                                                          GARRETT & TURNER DISSENT — 3

article.”7 An identical reference to Section 22(c) was added to Section 5, the deferred-adjudication

statute.8 The legislature did not add a reference in Section 5 to Section 15(b), the state-jail felony

counterpart to Section 22(c), even though the language in the latter two provisions was virtually

identical with respect to the procedure for extending the period of community-supervision.9 With

respect to whether and how long community supervision could be extended, Section 22(c), which

was new, provided in relevant part:

       The judge may extend a period of community supervision under this section as often
       as the judge determines is necessary, but in no case may the period of community
       supervision in a first, second, or third degree felony case exceed 10 years or the
       period of community supervision in a misdemeanor case exceed three years.10

                                         B. What it Means

       In construing a statute, we seek to effectuate the legislature’s collective intent.11 We discern

that intent solely from the literal text of the statute unless the text is ambiguous or leads to absurd

results that the legislature could not have possibly intended.12 When analyzing the literal text, we


       7
          S.B. 1067, § 4.01, lines 339-12 to 339-14 (Art. 42.12, § 3(d)) and lines 342-9 to 342-11
(Art. 42.12, § 4(c)).
       8
          Id., lines 345-13 to 345-15 (Art. 42.12, § 5(a)) (“A judge may increase the maximum
period of community supervision in the manner provided by Section 22(c) of this article.”).
       9
         Compare id., lines 379-21 to 379-26 (Art. 42.12, § 15(b)) (“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 revocation of community supervision is filed before the period of community
supervision ends, before the first anniversary of the expiration of the period of community
supervision.”) to id., 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 revocation of community supervision is filed before the period of community supervision ends,
before the first anniversary of the date on which the period of supervision expires.”).
       10
            Id., lines 406-23 to 406-27 (Art. 42.12, § 22(c)) (emphasis added).
       11
            Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011).
       12
            Id. (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)).
                                                           GARRETT & TURNER DISSENT — 4

read words and phrases in context, construing them according to the rules of grammar and usage, and

we presume that each word, phrase, clause, and sentence should be given effect if reasonably

possible.13 If the text is ambiguous or leads to absurd results that the legislature could not have

possibly intended, we may consult extra-textual sources of information.14

        The Court contends that the language of Section 22(c) is ambiguous. Even though the

relevant portion of Section 22(c) refers to every grade of offense but the state-jail felony, the Court

divides that single sentence (quoted above) into two parts, with the first part authorizing the trial

court to extend the period of probation and the second part (involving the reference to grades of

offenses) restricting how long such an extension can be. This construction leaves an obvious hole

in Section 22(c): How long can (deferred adjudication) supervision for a state-jail felony be

extended?

        To fill that hole, the Court looks to the deferred-adjudication provision (in Section 5) that

says, “In a felony case, the period of community supervision may not exceed 10 years.”15 But that

provision covers all classes of felonies, not just state-jail felonies. If that provision is sufficient to

fill in the hole created by the Court’s construction of Section 22(c), why does Section 22(c) need to

even contain the phrase “first, second, and third degree felony”? By using Section 5(a) to fill the

hole created by the Court’s construction of Section 22(c), the Court renders the phrase superfluous.

And at the time Section 22(c) was passed, the Court’s construction would have rendered the phrase

superfluous, not just in the deferred-adjudication context, but also for regular probation, because the


        13
         Id. (citing Lopez v. State, 253 S.W.3d 680, 685 (Tex. Crim. App. 2008), and State v.
Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997)).
        14
             Id. (citing Boykin).
        15
             Art. 42.12, § 5(a). See also S.B. 1067, § 4.01, lines 345-10 to 345-12.
                                                          GARRETT & TURNER DISSENT — 5

sections that addressed regular probation for non-state-jail felonies (Sections 3 and 4) also provided,

“In a felony case . . . the maximum period of community supervision is 10 years.”16

       Moreover, with respect to regular probation, the 1993 amendments unambiguously created

two separate tracks: state-jail felonies were governed entirely by Section 15, while cases involving

all other grades of offenses were governed by Sections 3, 4, and 22(c). The omission of any

reference to state-jail felonies in Section 22(c) meshes perfectly with this two-track scheme. Section

22(c) made no reference to state-jail felonies because it was not intended in the regular-probation

context to have any application to state-jail felonies. Given that Section 22(c) manifestly does not

apply to state-jail felonies in the regular-probation context, we should be hesitant about applying it

to such cases in the deferred-adjudication context. Had the legislature intended to permit judges to

extend the period of deferred-adjudication probation in state-jail felonies, it could have clearly

indicated that intent by including a reference in Section 5 (the deferred-adjudication statute) to the

state-jail felony provision governing such extensions, Section 15(b). The logical conclusion to be

drawn from that legislative choice is that the legislature did not intend to permit extensions of

deferred adjudication in state-jail felonies.

       Given the above considerations, we should not parse the sentence in Section 22(c) to create

a limitation upon the time period for extensions that is separate from the authorization for

extensions. Rather, that single sentence sets forth both the authorization for and the time limitations

upon extensions for the grades of offenses to which that sentence refers (all grades of offenses but

the state-jail felony). This construction reads the operation of Section 22(c) in the deferred-

adjudication context in harmony with how it operates in the regular-probation context, and this


       16
           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,
§ 4(b) (referring to § 3(b))).
                                                            GARRETT & TURNER DISSENT — 6

construction avoids creating a hole in Section 22(c) or rendering portions of that provision

superfluous. Given the requirement to read statutes in context and give meaning to each word,

phrase, and sentence, I conclude that the literal text of Article 42.12 requires a holding that Section

22(c) does not apply to deferred adjudication for a state-jail felony and that trial courts have no

authority to extend the period of deferred-adjudication supervision in state-jail felonies.

        Even if Section 22(c) were ambiguous, the Court’s discussion of extratextual factors is not

persuasive. The Court first argues, “It is hard to imagine any conceivable legislative policy to be

served by providing for the extension of the period of deferred community supervision for all other

grades of felony, and for misdemeanors, but not for state-jail felonies.” The answer to the Court’s

incredulity is that, from the start, the legislature chose to treat state-jail felonies differently from all

other grades of offenses. When the state-jail felony was first created in 1993, the legislature

mandated that all state-jail felony convictions would initially result in the suspension of the sentence

and the placement of the offender on probation.17 No other class of offense, felony or misdemeanor,

carried automatic probation. Moreover, the legislature made no exception to the automatic probation

requirement for convictions that occurred upon adjudication of deferred-adjudication probation.

Because an offender was guaranteed a second period of probation upon adjudication, the legislature

might not have wanted to allow extensions of the initial period of deferred adjudication for state-jail

felonies.

        Moreover, subsection 15(b) provided, “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 revocation of community supervision is filed before the period of community supervision ends,


        17
          Id., lines 379-12 to 379-15 (Art. 42.12, § 15(a)). See also State v. Mancuso, 919 S.W.2d
86, 88-89 (Tex. Crim. App. 1996).
                                                         GARRETT & TURNER DISSENT — 7

before the first anniversary of the expiration of the period of community supervision.”18 The very

same subsection also provided, “The maximum period of community supervision a judge may

impose under this section is five years.”19 Even if there is some ambiguity in Section 15(b) regarding

whether the five-year maximum applies to the initial probation period or to an extension of the

probation period, it is clear from the outset that Section 15 contained its own mechanism for

extending the period of regular probation in state-jail felonies and that the legislature did not

incorporate that mechanism into the deferred-adjudication statute.

       The Court further says that the “haze” regarding the legislature’s intent was lifted when the

legislature added the “good cause” requirement to Section 22(c) in 2007. The Court relies heavily

upon a passage from a House Research Organization Bill Analysis that seems to suggest that Section

22(c) allows judges to extend probation periods for state-jail felonies (as well as for other felonies

and misdemeanors). The passage in question is part of the “background” section of the bill

analysis,20 and it does not appear in either the House Committee Report21 or the Senate Research

Center’s Bill Analysis.22 I cannot agree that this isolated, background passage in a House Research

Organization report for a 2007 bill constitutes an acknowledgment by the legislature of its intent in



       18
            S.B. 1067, § 4.01, lines 379-21 to 379-26 (Art. 42.12, § 15(b)).
       19
            Id.
       20
          House Research Organization, Bill Analysis, H.B. 1678, 80th Leg., p. 2 (Apr. 24,
2007), http://www.hro.house.state.tx.us/pdf/ba80r/hb1678.pdf.
       21
         House Corrections Committee, Committee Report Bill Analysis, C.S.H.B. 1678, 80th
Leg., passim (Apr. 12, 2007),
http://www.capitol.state.tx.us/tlodocs/80R/analysis/pdf/HB01678H.pdf.
       22
         Senate Research Center, Bill Analysis, H.B. 1678, 80th Leg., passim (May 13, 2007),
http://www.capitol.state.tx.us/tlodocs/80R/analysis/pdf/HB01678E.pdf.
                                                           GARRETT & TURNER DISSENT — 8

enacting the 1993 amendments. Even if it were, “one session of the legislature does not have the

power to declare the intent of a past session, and a legislative construction of an act of another

legislature is uniformly held to be entitled to little weight.”23 And simply adding a “good cause”

requirement cannot by itself cause Section 22(c) to suddenly apply to state-jail felonies.

       I conclude that the trial judge had no authority to extend the period of the appellants’

deferred-adjudication probation. I respectfully dissent.

Filed: June 20, 2012
Publish




       23
           Ex parte Schroeter, 958 S.W.2d 811, 813 (Tex. Crim. App. 1997). See also Volosen v.
State, 227 S.W.3d 77, 80 (Tex. Crim. App. 2007) (“But in interpreting a prior law, we generally
accord little weight to subsequent legislative enactments.”); Ex parte Ervin, 991 S.W.2d 804, 816
(Tex. Crim. App. 1999) (“Although we have held that subsequent enactments by the Legislature
may be some evidence of their intent in a prior version of the statute, we nevertheless give little
weight to those subsequent enactments in interpreting the prior law.”) (comparing Schroeter with
Brown v. State, 943 S.W.2d 35, 40 (Tex. Crim. App. 1997)).
