Ellard v. State

¶1ON STATE’S MOTION FOR REHEARING

¶2Rehearing denied.

¶3The state’s motion for rehearing has been overruled without written opinion.

¶4The state argues that the original opinion, holding that a twelve year sentence cumulated with a seven year sentence is bailable, construes Article 44.04, Vernon’s Ann.C.C.P., too strictly and I agree.

¶5Article 1.26, V.A.C.C.P., states:

“The provisions of this Code shall be liberally construed, so as to attain the objects intended by the Legislature: The prevention, suppression and punishment of crime.”

¶6In 53 Tex.Jur., Statutes, Section 194, pages 298-300, it is written:

“A liberal construction of a statute is one that accords with the intention of the legislature and the substance, spirit, purpose, or object of the enactment. Such a construction disregards mere technical distinctions and gives the enactment the most comprehensive application of which it is susceptible without doing violence to any of its terms. On the other hand, a strict construction is one that gives the statute a narrow, though not necessarily the narrowest, meaning or a restricted application, according to its liberal terms.

“. . . The legislature has expressly required . . . that the provisions of *599the Code of Criminal Procedure be liberally construed, so as to attain the objects intended by the legislature1; and that the Penal Code and every other law on the subject of crime be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws on other subjects ... It follows that a statute will not ordinarily be given a strict or unnecessarily strict construction.”

¶7This appears to be a case of first impression ; so, we ask: What was the intent of the legislature when Article 44.04, supra, was enacted? More specifically, what construction should be placed on paragraph (h) of such Article ?

¶8It is submitted on behalf of the state that the intent of the legislature in Article 44.04(h), supra, appears to be that where a defendant has more than fifteen years to serve in the Department of Corrections, the chance of his jumping bail is far greater than if the punishment is fifteen years or less; and, the legislature contemplated that where a defendant has more than fifteen years to serve he should be incarcerated pending his appeal.

¶9This court should not distinguish between a defendant receiving nineteen years punishment in one conviction and one receiving nineteen years punishment by virtue of cumulative sentences. In either situation, the defendant received a punishment of nineteen years.

¶10We find an analogous precedent relating to cumulated punishment when we note the recent rule changes of habeas corpus for the purpose of parole eligibility.

¶11In McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238, it was necessary for a habeas corpus petitioner, post conviction, to show that his discharge was in issue in order to have habeas corpus standing. This doctrine was overruled in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, which was a case involving cumulative sentences.

¶12In Peyton v. Rowe, supra, it is stated:

“However, in common understanding ‘custody’ comprehends respondents’ status for the entire duration of their imprisonment. Practically speaking, Rowe is in custody for 50 years, or for the aggregate of his 30- and 20-year sentences. For purposes of parole eligibility, under Virginia law he is incarcerated for 50 years.” 88 S.Ct. at page 1555.

¶13This court’s opinion in Ex parte Alegria, 464 S.W.2d 868, cited Peyton v. Rowe, supra, and held that this court would no longer follow the rule announced in Ex parte Rios, 385 S.W.2d 677, which was based on McNally v. Hill, supra.

¶14The majority places a strict construction on Article 44.04(a), V.A.C.C.P., and seizes on the word “a” within such statute, where the same states” ... a fine or confinement not to exceed fifteen years or both”.2 (Emphasis supplied.)

¶15I would grant the state’s motion for rehearing, deny this writ, and hold that where the cumulative sentences provide for punishment in excess of fifteen years bail should be denied under Article 44.04(h) V.A.C.C.P.

¶16I respectfully dissent.