Section III. Enhancement of Misdemeanors: Texas Penal Code §12.43

8. crimes committed due to bias or prejudice are normally Class A misdemeanors but become third degree felonies with two or more previous convictions or by committing assault;37 9. the level of offense of stalking is enhanced if previously convicted of stalking in Texas or in other jurisdictions;38 10. the prostitution statute enhances the level of offense based on the number of previous convictions and the type of participation of the defendant;39 11. when one is charged with fraudulent filing of a financial statement the level of crime varies from Class A misdemeanor to second degree felony based on previous convictions or actor’s intent;40 12. the soliciting membership in a criminal street gang statute increases the level of the offense if the charge is a “second or subsequent offense under this section,” saying nothing about previous convictions;41 13. harassment enhancement uses previous convictions among other things;42 and many, many more including crimes that I frankly have no idea what they are like theft or tampering with multichannel video or information system. 43

Lest we not forget, there are many crimes that enhance because of the status of the defendant or the victim. A couple examples would be crimes committed by public servants44 and when the victim is a member of a protected class.45 This is a non-exhaustive list of those crimes that I accumulated in my quest, but it shows the lengths the legislature will go to satisfy political interests at the expense of an understandable, predictable and consistent penal code. It would take a book to cover all enhanced statutes. Sadly, the book would be out of date at the passing of the next legislative session. So, I chose three frequently used specific statutes to illustrate the specific versus general statute enhancement application schemes.

Driving While Intoxicated (DWI). The reason enhancements can be confusing, and why I insist that my students read their statutes every time, is the example of specific enhancement compared to general enhancement as applied to driving while intoxicated.

To illustrate my point, I will only address the level of the offense charged and the maximum jail one could receive for a conviction only. Normally, a DWI is a Class B misdemeanor with a maximum punishment of 6 months in jail.46 However, the very same behavior can be prosecuted

37 Texas Penal Code §25.071. 38 Texas Penal Code §42.072. 39 Texas Penal Code §43.02. 40 Texas Penal Code §37.101. 41 Texas Penal Code §71.022. 42 Texas Penal Code §42.07. 43 Texas Penal Code §31.12. 44 Texas Penal Code §31.03(f) Theft by a Public Servant. 45 Texas Penal Code §12.47 Penalty if Offense Committed Because of Bias or Prejudice. 46 Texas Penal Code §49.04(b). Class B misdemeanors carry a maximum term of confinement of 180 days. Texas Penal Code §12.22.