Smith v. State

*591OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant pleaded guilty to the offense of robbery and was sentenced to 10 years confinement in the Texas Department of Corrections.1 On February 10, 1988, he was remanded into the custody of the sheriffs department “until such time as the Sheriff can obey the directions of this sentence.” Although the judgment specified that he was to serve his sentence in the custody of the Department of Corrections, a shortage of space forced the sheriff to continue holding appellant in the county jail. On June 1, a hearing was conducted on appellant’s motion for probation (shock probation V.A.C.C.P. art. 42.12 § 3e(a))2 after execution of his sentence. The trial court granted appellant’s motion, and appellant was soon released pursuant to the court’s order. Appellant was never transferred to the Texas Department of Corrections. The State appealed this grant of probation, see V.A.C.C.P., Art. 44.01, and the First Court of Appeals affirmed the judgment of the trial court. 762 S.W.2d 235. We granted the State’s petition for discretionary review to determine “whether a trial court may grant ‘shock probation’ when the defendant has never served any of his sentence in the Texas Department of Corrections.” 3 We will reverse the judgment of the Court of Appeals.

On direct appeal, the State argued that former V.A.C.C.P., Art. 42.12, § 3e(a) required a person to have actually spent some time incarcerated in a Texas Department of Corrections facility before being eligible for shock probation. This argument is based on the observation that section 3e addresses itself to the trial judge’s determination that the defendant would not benefit from further “incarceration in a penitentiary,” as opposed simply to “further incarceration.” The State reasons that it is the shock of incarceration in a state penitentiary that motivates a defendant to reform; whereas, a county jail would not provide the same impetus for rehabilitation. Appellant responds that, while Section 3e could have expressly predicated eligibility for shock probation on incarceration in the Texas Department of Corrections, the statute does not do so.

The Court of Appeals held that Section 3e does not expressly require confinement in the Department of Corrections and that thus predicating eligibility for shock probation on penitentiary confinement would effectively allow the State to contravene shock probation for a given inmate by delaying transfer from a county facility until after the trial court’s jurisdiction had lapsed. The court noted that Section 3e *592allows for shock probation, assuming that the defendant meets other qualifications, if his sentence requires confinement in the Texas Department of Corrections. The Court of Appeals distinguished this language from an actual requirement of incarceration in the Department of Corrections. In addition, the court looked to past amendments of Section 3e and cases from this Court for added, although indirect, support for its position.

Despite the reasoning of the Court of Appeals, the terms of section 3e are clear and unambiguous. When a statute is clear and unambiguous, this Court will not strain that plain meaning of the wording in order to give the statute a “desirable” reading. Floyd v. State, 575 S.W.2d 21, 23-24 (Tex.Cr.App.1978); Courtemanche v. State, 507 S.W.2d 545, 546 (Tex.Cr.App.1974); see also Powell v. State, 538 S.W.2d 617, 619 (Tex.Cr.App.1976).

The legislature could have had one of two possible intents in using the word “penitentiary.” First, it could have intended that a person seeking shock probation must have been actually incarcerated in a penitentiary. This understanding of legislative intent is rational because penitentiary confinement is qualitatively different than jail confinement. Second, the legislature could have simply intended to require that a judgment of conviction specify confinement within the Department of Corrections, without regard to whether the defendant ever serves time in a penitentiary, leaving open the possibility that a defendant migh serve his sentence in some other type of penal institution. On its face, Section 3e requires the trial judge to find that a defendant “would not benefit from further incarceration in a penitentiary.” To the extent that ym are unable to determine that the legislature intended anything but the literal meaning of the words in the statute, we hold that in order for a person to be eligible for shock probation, that person must serve some portion of his sentence in the Department of Corrections. Because appellant had not been incarcerated in a penitentiary, he was statutorily ineligible for shock probation.

The judgment of the Court of Appeals is reversed and the judgment of the trial court is vacated. This cause is remanded to the trial court for action consistent with this opinion.

STURNS, J., dissents.

. The Department of Corrections is now called the Texas Department of Criminal Justice, Institutional Division.

. The current statutory provisions relevant to shock probation are now located in V.A.C.C.P., Art. 42.12, §§ 6-8. The language upon which the State relies was not changed in this recodifi-cation. The relevant text of Article 42.12, in effect at the time of appellant's trial and motion for probation, stated:

Sec. 3e. (a) For the purposes of this section, the jurisdiction of a court in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction (of a felony) shall continue for 180 days from the date the execution of the sentence actually begins. After the expiration of 60 days but prior to the expiration of 180 days from the date the execution of the sentence actually begins, the judge of the court that imposed the sentence may on his own motion or on written motion of the defendant, suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary. Probation may be granted under this section only if:
(1) the defendant is otherwise eligible for probation under this article; and
(2) the defendant had never before been incarcerated in a penitentiary serving a sentence for a felony; and
(3) the offense for which the defendant was convicted was other than those defined by Section 19.02, 20.04, 22.021, 22.04(a)(1), (2), or (3), 29.03, 36.02, 38.07, 71.02[,] or a felony of the second degree under Section 38.10, Penal Code, [emphasis added].

.The reason for review is that this is an important issue of state law which has not been, but should be, decided by this Court. Tex.R.App. Pro. 200(c)(2).