dissenting on State’s petition for discretionary review.
I believe it best when construing statutes to be guided by V.T.C.A., Government Code §§ 311.021 and 311.023. Section 311.-021 states:
Intention in Enactment of Statutes In enacting a statute, it is presumed that:
(1) compliance with the constitutions of this state and the United States is intended;
(2) the entire statute is intended to be effective;
(3) a just and reasonable result is intended
(4) a result feasible of execution is intended; and
(5) public interest is favored over any private interest.
Section 311.023 states:
Statute Construction Aids
In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:
(1) object to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws on the same or similar subjects;
(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provision.
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 nonsubstantive 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.
With these comments, I dissent.
STURNS, J., joins.