Academic journal article Texas Journal of Women, Gender, and the Law

Obtaining the Intended Protection for Victims of Domestic Violence under Section 22.01 of the Texas Penal Code

Academic journal article Texas Journal of Women, Gender, and the Law

Obtaining the Intended Protection for Victims of Domestic Violence under Section 22.01 of the Texas Penal Code

Article excerpt

I. Introduction

Under the current version of section 22.01 of the Texas Penal Code, an assault against a family member or of a member of the perpetrator's household elevates the offense from a Class A misdemeanor to a felony of the third degree if the defendant has been previously convicted of a similar offense under the section. Both the legislative history and explicit language of this statute evidence a clear desire on the part of the Texas legislature to address meaningfully the very serious and troubling issue of domestic violence. Unfortunately, section 22.Ol's current restrictive language jeopardizes this goal. This article illustrates the problems with the current language in section 22.01, and proposes amending the section's language, allowing the true legislative intent to be fully realized. Part II of this article traces the historical development of section 22.01, and discusses the origins of the current elevation provision in this statute. By engaging in a "plain meaning analysis" and applying additional principles of statutory construction, Part III describes how the problematic language of section 22.01 (b)(2) thwarts the legislative intent of the statute. Finally, Part IV provides a conclusion and proposals for change.

II. The Historical Development of section 22.01 of the Texas Penal Code

section 22.01 (b)(2) of the Texas Penal Code1 provides that upon a repeat occurrence of violence against a member of the defendant's family or household, the offense is elevated from a class A misdemeanor to a felony of the third degree, "if it is shown on the trial of the offense that the defendant has been previously convicted of an offense . . . under this section."2 Subsection (e) provides that for purposes of section 22.01, the terms "family" and "household" have the meanings assigned to them in the Texas Family Code.3 Importantly, because section 22.01(b)(2) does not increase only the punishment for a repeat offender, but rather elevates the entire underlying offense from a misdemeanor to a felony, the provision is deemed to be a jurisdictional element of the particular offense prohibited in the statute, rather than a penalty-enhancement provision.4 In reality, of course, given that the punishment for a felony is more severe than for a misdemeanor, section 22.01(b)(2) can also be regarded as a penalty enhancement provision.5

In elevating an offense from a misdemeanor to a felony under section 22.01(b)(2),6 the Texas legislature was clearly attempting to harden its treatment of repeat offenders,7 and thereby deter domestic violence more effectively.8 As illustrated herein, however, the "under this section" requirement poses significant problems to prosecutors who wish to use a pre-1999 conviction to elevate a perpetrator's offense under the current version of this statute.

In State v. Eakins,9 the court noted, "The legislature first prescribed a harsher punishment for defendants guilty of repeated acts of domestic assault in 1989, when it amended section 22.01 to add language similar to that now found in subsection (2)(b)."10 Language allowing elevation of an offense under this section from a misdemeanor to a third degree felony based on a single prior conviction did not appear in its current form, however, until the section was amended in 1999." Prior versions of the statute, beginning first in 1995, allowed for elevation of a misdemeanor based on two prior convictions of family violence to a state jail felony.12 The effective date of the 76th Legislature's amendments to section 22.01 was September l, 1999.13 In sum, therefore, there can be no doubt that in increasing the offense from a misdemeanor to a felony, and lessening the number of prior, similar convictions necessary for elevation from two to one, the Texas legislature intended to increase the scope and severity of the consequences for repeat offenders of domestic violence.

III. Statutory Construction and the "Under This section" Requirement

The "under this section" restriction inhibits a prosecutor's efforts to elevate an offense under section 22. …

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