concurring.
In my judgment, the statutory provisions in question are far from being “clear and unambiguous,” majority opinion, at 255.1 They derive from legislative weapons fashioned for use in “The War on Crime” by Acts 1981, 67th Leg., Ch. 268, p. 696, § 2, at 697, and § 17, at 707 (House Bill 730).2 Also implicated is Acts 1981, 67th Leg., Ch. 276, p. 741 (House Bill 729).3 As shown in notes 2 and 3 respectively, reasonable observers close to the legislation were unable to come to a common understanding of those putative appellants to whom bail was *256denied, but did agree which defendants were precluded from deferred adjudication; for his part, while critical of the legislative manner of bringing about the latter, Professor Wendorf entertained no doubt on either score.4
The common feature in § 16 and § 17 of House Bill 730 is the reference to “an offense listed in [under] Section 4.012(b),” both of which are retained in Article 42.12, § 5(d) and in Article 44.04(b), respectively. Until repealed in 1981, § 4.12(a), contained similar provisions precluding its application to certain offenses under the Act.5
From early treatment of all those related issues there thus developed a pattern of legislative intent to withhold otherwise generally available benefits from those defendants charged with or found guilty of controlled substance offenses deemed more egregious than others, i.e., illegal investment, delivery to minor and aggravated manufacture, delivery and possession with intent to manufacture or deliver. In its attack on controlled substances offenses, albeit somewhat awkwardly expressed at times, while permitting pretrial bail, see Article 17.03(b)(2), Y.A.C.C.P., the Legislature evidenced a purpose and design to deprive major offenders of such redeeming alternatives as release on deferred adjudication, conditional discharge and, once convicted, on bailbond pending appeal. To construe Article 44.04(b), V.A.C.C.P., and § 4.012(b) of the Act accordingly is in harmony with legislative intent, purpose and design.
For those reasons, I join the judgment of the court.
McCORMICK, P.J., and CAMPBELL, J., join.. Emphasis here and throughout this opinion is mine unless otherwise indicated. The Texas Controlled Substances Act is sometimes referred to as the "Act.”
. Section 17 amended Article 44.04(b), C.C.P. by inserting the underscored language so as to read as follows:
“(b) The defendant may not be released on bail pending the appeal from any felony conviction where the punishment exceeds 15 years confinement or where the defendant has been convicted of any offense listed under Section 4.012(b), Texas Controlled Substances Act, as amended (Article 4476-15, Vernon's Texas Civil Statutes), but shall immediately be placed in custody and the bail discharged.”
Even upon original enactment of § 17 in House Bill 730, contemporaneously interested commentators were unable to agree on its application to bail on appeal. See, e.g., Rep. Bob Maloney & Dain Whitworth, Legislative Review, 67th Regular Session, 11 Voice for the Defense 6, at 41-42 (July 1981) (“No bail allowed for repeat offenders regardless of sentence.”); H.D. Wendorf, The War on Crime: 1981 Legislation, 33 Baylor L.Rev. 765, at 784 (Fall 1981) (bail on appeal denied to convicted aggravated substance offenders but not to illegal investment offenders).
.That "The War on Crime" was waged with several legislative bills as weapons seemed to confuse some warriors fighting controlled substances. For example, § 8 of House Bill 730, ante, added § 4.051, captioned and proscribing "Unlawful possession of marihuana," as well as § 4.052, “Illegal investment.” Whereas House Bill 729, § 1, also added § 4.051, captioned and proscribing "Delivery of controlled substance to minor." (That duplicity was resolved, however, in Acts 1983, 68th Leg., Ch. 425, p. 2361, at 2392, § 16, by creating and moving to § 4.053 "Delivery of Controlled Substance to Minor.”)
Meanwhile, § 16 of House Bill 730 rejected deferred adjudication pursuant to former § 3d for an illegal investment offender under § 4.052, as well as for “an offense listed in § 4.012(b)§ 3 of House Bill 729 proscribed it for a “delivery to minor” offender under its § 4.051. (That too was reconciled in § 25 of Acts 1983, ante, by precluding both §§ 4.052 and 4.053 offenders from deferred adjudication, along with listed § 4.012(b) offenders.
Unlike denial of bail under § 17, however, there was general agreement that § 16 of House Bill 730 denied deferred adjudication pursuant to former § 3d, Article 41.12, C.C.P., to aggravated substance offenders. See Maloney & Whit-worth, supra, at 42; Knox Jones & Robin Welch, Offenses and Penalties under the Revised Controlled Substances Act, 11 Voice for the Defense 32, at 33 (September 1981); Wendorf, supra, at 784.
. Concluding his analysis of House Bill 730, Professor Wendorf wrote:
"What could be called the topping sections of the punitive provisions in the trafficking act amend the Code of Criminal Procedure to deny aggravated drug offenders and illegal investment offenders the court ordered probation and deferred proceedings of Section 2d [sic], article 42.12 of the Code of Criminal Procedure.168 Then final topping is supplied by the denial of bail on appeal to those convicted of aggravated drug offenses (but this denial is not extended to illegal investment offenders.
168 Id., § 16. This is accomplished by use of references many might attack as equivocal, and this technique will please the hearts of only the most technical of legislative draftsmen but the denials are, nevertheless, apparently intended to apply to aggravated and illegal investment offenders.”
Id., at 784. But, by amending § 3f(c), Article 42.12, § 25 of the 1983 Act clearly specifies those defendants to whom deferred adjudication is denied, viz;
“(c) The provisions of Section 3d of this Article do not apply to a defendant charged with or adjudged guilty of an offense under Section 4.052 [illegal investment] or 4.053 [delivery to minor] Texas Controlled Substances Act (Article 4476-15, Vernon’s Texas Civil Statutes), or an offense listed in Section 4.012(b).”
. Not previously mentioned by commentators were restrictions placed on a trial court in granting "conditional discharge" to first controlled substance offenders pursuant to former § 4.12(a) within the Texas Controlled Substance Act. See § 9 of House Bill 730 and § 2 of House Bill 729, the former excepting "an aggravated offense or an offense under Section 4.052 of this Act," the latter excepting only "a violation of Section 4.051 of this subchapter;” but see also § 17 of the 1983 Act, amending § 4.12(a) by combining former § 9 and § 2, ante, into “except an aggravated offense or an offense under Section 4.052 [illegal investment] or 4.053 [delivery to minor (formerly § 4.051 in House Bill 729) ].”