ETHICAL ISSUES IN PROBATION

JUDGE LARRY GIST Senior District Judge, Beaumont Senior Criminal District Judge P. O. Box 3707 Beaumont, TX 77704-3707 Street Delivery Address: Drug Impact Court 215 Franklin Beaumont, TX 77701 Phone: 409-835-8506 Fax: 409-839-2304 E-Mail: [email protected]

2001ADVVANCED CRIMINAL LAW COURSE Corpus Christi, Texas July 16-19, 2001 CHAPTER 12.1

JUDGE LARRY GIST EDUCATION; Bishop Byrne High School; BBA University of Notre Dame; J.D. University of Texas Law School; Texas Judicial College; National Judicial College; Trial Advocacy Institute, Harvard Law School; National Institute Trial Advocacy, University of Notre Dame Law School; College of the State Bar of Texas; College of Advanced Judicial Studies, Tex.Judicial Center. EMPLOYMENT; Assistant Criminal District Attorney, Jefferson County, Texas (9 yrs.); Assistant State's Attorney, Texas Court of Criminal Appeals (1 yr.); Judge, Criminal District Court of Jefferson County, Texas (20 yrs.). Presently Senior Criminal District Judge (6 yrs.). ADMITTED TO PRACTICE; Supreme Court of Texas and all Texas Courts; United States Supreme Court; United States District Courts, Eastern District of Texas. PROFESSIONAL; Board Certified Specialist in Criminal Law, Texas State Bar Board of Legal Specialization; Chairman, Texas Board of Criminal Justice Judicial Advisory Council; Chairman, Criminal Law Section, State Bar of Texas; Penal Code Committee Chairman, Texas Punishment Standards Commission; Member, Texas Punishment & Sentencing Commission; Member, Texas Recidivism Task Force; Chairman, State Jail Judicial Task Force; Member, Governor’s Code of Criminal Procedure Revision Committee; Director, International Comparative Criminal Law Course; Chairman, Judicial Advisory Board, Texas Association for Court Administration; Director, State Bar Advanced Criminal Law Course; Member, Judicial Advisory Council, National Organization For Victim Assistance: Adv. Board Member, Crime Prevention Institute; Editor, Criminal Law Journal, State Bar of Texas; Qualified Master, Mehaffy Inn of Court; Board Member & Chairman, Judicial Section, American Probation & Parole Association; Advisory Board, Texas Capital Litigation Assistance Project. FACULTY; National Judicial College; Texas Judicial College; State Bar of Texas Advanced Criminal Law Course; Adjunct Professor, South Texas College of Law and Lamar University; International Comparative Criminal Law Course; Lecturer at Oxford University & Cambridge University, England; Westminister Law School, London, England; Munich University Law School, Munich, Germany. Consultant, National Institute of Justice, U.S. Department of Justice; Frequent lecturer to local, state, national and international groups and conferences on criminal law issues. PUBLICATIONS; Branch's Annotated Texas Penal Statutes; Texas Court Administration; Punishment Alternatives, National Judicial College Coursebook; Punishment & Sentencing, Texas Judicial College Coursebook; Texas Sentencing, State Bar of Texas Advanced Criminal Law Coursebook; Capital Murder: Michael Lockhart, A Perfect Gentleman; Regular contributor Texas Prosecutor monthly magazine, Voice For The Defense monthly magazine, Texas Corrections Journal, and Texas Probation Journal. Contributing Editor, Texas State Trooper monthly magazine; Problems In Criminal Trial Advocacy; Texas Capital Punishment. AWARDS; Chris Marshall Distinguished Faculty Award, Tex. District & County Attorneys Assn; Twice received Outstanding Professor Award, South Texas College of Law; Knights of Columbus Outstanding Jurist Award; Criminal Justice Center, Sam Houston State University Award of Merit; Justice Charles Barrow Award, Texas Association for Court Administration; President's Award, Texas Corrections Association; Eagle Scout; National Boy Scouts of America Silver Beaver Award; State Bar of Texas Outstanding Judge Award; Jefferson County Outstanding Young Lawyer; Media Excellence Award, Press Club of Southeast Texas; Judge Clarence Stevenson Distinguished Service Award, Texas Corrections Association; lst Texas State Jail named the Larry Gist Unit by the Texas Board of Criminal Justice. CIVIC; Active in numerous civic, charitable and religious organizations. Director, YMCA; Director, Mental Health Association; Chairman, Beaumont Senior Citizens Association; President, Beaumont Kiwanis Club; Director, Texas Public Affairs Network; Cubmaster, Assistant Scoutmaster and Scoutmaster, Boy Scouts of America. Member, Eagle Scout Board of Review, Executive Committee and Camping Committee Chairman, 3 Rivers Council, Boy Scouts of America.

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Table Of Contents Introduction ............................................................................................................................1 What is Community Corrections...............................................................................................1 The World of Correctional Jargon ............................................................................................1 Article 42.12 C.C.P. Section 1-Purpose....................................................................................2 Section 2-Definitions ...............................................................................................................2 Section 3-Judge Ordered Community Supervision......................................................................2 Section 3g-Limitation On Judge Ordered Community Supervision...............................................3 Section 4-Jury Recommended Community Supervision ..............................................................3 Section 5-Deferred Adjudication ..............................................................................................4 Section 6-Continuing Court Jurisdiction In Felony Case.............................................................5 Section 7-Continuing Court Jurisdiction In Misdemeanor Case ...................................................6 Section 8-State Boot Camp Program........................................................................................6 Section 9-Presentence Investigations........................................................................................6 Section 10-Authority To Impose, Modify, Or Revoke Community Supervision.............................7 Section 11-Basic Conditions of Community Supervision ............................................................8 Section 12-Confinement As A Condition Of Community Supervision ..........................................8 Section 13-DWI Community Supervision ..................................................................................8 Section 13A-Community Supervision For Offense Committed Because Of Bias Or Prejudice......9 Section 13B-Defendants Placed On Community Supervision For Sexual Offense Against Children .................................................................................................................................9 Section 13C-Making Firearm Accessible to Child .................................................................... 11 Section 13D-Violent Offenses/Protecting Children.................................................................. 11 Section 14-Child Abusers, Sex offenders And Family Violence Offenders; Special Conditions ... 11 Section 14-Substance Abuse Felony Program......................................................................... 11

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Section 15-Procedures Relating To State Jail Felony Community Supervision............................ 11 Special Enhancement Ranges/State Jail Offenses ................................................................... 13 Section 15A-Enhanced Disorderly Conduct and Public Intoxication .......................................... 13 Section 16-Community Service .............................................................................................. 14 Section 17-Change In Residence; Leaving The State............................................................... 14 Section 18-Community Corrections Facilities........................................................................... 14 Section 19-Fees .................................................................................................................... 14 Section 20-Reduction Or Termination Of Community Supervision ............................................ 15 Section 21-Violation Of Community Supervision; Detention And Hearing ................................. 15 Section 22-Continuation Or Modification................................................................................. 15 Section 22A-Extension for Sex Offenders .............................................................................. 15 Section 23-Revocation........................................................................................................... 16 Art. 42.023-Judge Can Consider Alternative Sentence ............................................................ 16 Special County Jail Confinement Provisions ............................................................................ 16 Art. 43.037-Restitution .......................................................................................................... 16 Art. 42.08-Cumulative or Concurrent Sentences ..................................................................... 16 Punishment Election.............................................................................................................. 16 Recent Cases, Court of Criminal Appeals ............................................................................... 17 Recent Cases, Courts of Appeal............................................................................................ 19 APPENDIX: Monographs of Alternative Programs in Texas

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ETHICAL ISSUES IN PROBATION No part of the criminal process is used more often and is more misunderstood than community corrections. Community Supervision Officers, Prosecutors, Members of the Criminal Defense Bar and even Judges have a very difficult time doing what is authorized and avoiding what is not. Every “do gooder,” “get tough on crime” practitioner and political leader has a special interest in certain types of situations. The “crime de jour” approach of the Legislature is legendary. Out of balance and out of whack provisions make community corrections law the most complicated part of the criminal corrections process. So, every possible effort is going to be made to explain what is often illogical and inconsistent in a simple way in the hope that practitioners can benefit from this paper.

offenders. If they don’t, the offenders will continue to harm them. People who don’t live in that community have little to fear, but for folks who do live there, it’s critical. Thus, said the Legislature, let communities fix their own in the way they think is appropriate. The World Of Correctional Jargon It seems like everything of significance in community corrections has to have its own code. So in order to understand the various provisions of community corrections, and to understand the rest of this paper, herewith is the glossary: CSCD - Community Supervision and Correction Department known in its former life as a Probation Department. CSO - Community Supervision Officer, formerly called a Probation Officer. TBCJ - Texas Board of Criminal Justice. It consists of 9 members appointed by the Governor and their function is to supervise management of the Texas Department of Criminal Justice. JAC - the Judicial Advisory Council. It consists of 12 members appointed by the Chief Justice of the Texas Supreme Court and the Presiding Judge of the Texas Court of Criminal Appeals. Their duty is to advise the TBCJ and the Director of the Community Justice Assistance Division on all matters of interest to the judiciary. TDCJ - the Texas Department of Criminal Justice. This is a mega agency that has several divisions: CJAD - the Community Justice Assistance Division. It provides much of the money to operate the CSCD’s of Texas and also sets standards that all CSCD’s must follow. ID - the Institutional Division which builds and operates the Texas Prisons. It was formerly called TDC - the Texas Department of Corrections. PPD - the Pardons & Paroles Division. They’re the administrative arm of BPP - the Board of Pardons & Paroles. PPD recommends parole and revocation to BPP who actually makes the decision. PPD also supervises everyone released from ID on parole or mandatory supervision. SJD - the State Jail Division. They’re responsible for building and operating most of the

What is Community Supervision??? It isn’t probation, you can bet on that. The Legislature made a deliberate effort 2 sessions ago to eliminate every possible mention of probation in the Code. In the public mind, probation had taken on a very unpopular meaning. It was only a “slap on the wrist” and “one free felony.” That wasn’t exactly the case, but no matter. If it walks like a duck etc...... So maybe, thought the Legislature, if the name were changed so would the image. Thus the first thing you have to do is forget the term probation. Its elimination was not just to change names but also to chance the concept. Some offenders need to be supervised in confinement. Those are sent to a jail, prison or state jail. Others can be supervised in the community either out of custody or in a facility or program operated by the Community Supervisions and Corrections Department. The idea of community corrections is that certain offenders can be supervised locally and hopefully reintegrated into the community as a lawabiding citizen. Studies clearly indicate that offenders generally return to their home jurisdiction. It just makes sense for a particular community in its own way to correct their own

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State Jails in Texas. There are 2 types of State Jails. Mode I State Jails are built and operated by SJD. Mode II State Jails are supervised by CJAD and built and operated by private concerns, primarily CSCD’s. SAFTF - pronounced “SAFE-P”. It stands for Substance Abuse Felony Treatment Facility. These are facilities built and operated by ID that look like ordinary prisons. However, admission is limited only to offenders under community supervision who are ordered there by the supervision Judge. Once admitted, they receive extensive substance abuse treatment. INMATE - someone confined in a county ja il or ID facility. CONFINEE - someone confined in a State Jail. CCP - The Texas Code of Criminal Procedure. PC - The Texas Penal Code

Community Supervision 1. The placement of a defendant 2. By a court 3. Under a continuum of programs and sanctions 4. With conditions imposed by the court 5. For a specified period during which; a. criminal proceedings are deferred without an adjudication of guilt; or b. a sentence of - imprisonment or confinement - imprisonment and fine - or confinement and file - is “probated” and - the imposition of sentence is suspended in whole or in part. Supervision Officer - a person appointed or employed to supervise persons placed on community supervision.

Art. 42.12 C.C.P.

Section 3 Judge Ordered Community Supervision

Section l Purpose

First note that the following rules apply only to “suspended” sentence community supervision. That’s where a judge finds a defendant guilty, assesses a sentence, and then suspends the service of that sentence while the defendant complies with the conditions imposed by the judge. In a felony case, the minimum supervision period is the minimum sentence authorized for the offense. For instance, in a Third or Second Degree offense, the minimum supervision period is 2 years. In a First Degree offense, the minimum period of supervision is 5 years. (See Sec. 12.32, 12.33 and 12.34, PC). However, for a defendant charged (regardless of the child’s age) with a felony under the following PC Sections, the minimum supervision period is 5 years and the maximum period is 10 years.

It’s the purpose of this law to place “wholly within the state courts” 1. the responsibility for determining when the imposition of sentence in certain cases shall be suspended. 2. the responsibility to determine the conditions of community supervision. 3. the responsibility to supervise defendants placed on community supervision. It’s further the purpose of this law to “remove from existing statutes ...the limitations that have acted as barriers to effective systems of community supervision in the public interest.” Section 2 Definitions

- 21.11 (Indecency with a child) - 22.011 (sexual assault) - 22.021 (aggravated sexual assault) - 43.25 (sexual performance of a child) - 43.26 (possession or promotion of child pornography)

Court - a court of record having original criminal jurisdiction.

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- 21.08 (indecent exposure) - 25.02 (prohibited sexual conduct) - 20.04(a)(4) (injury to a child, elderly individual or disabled individual) if committed with the intent to violate or abuse the victim sexually - 30.02 (d) (burglary of a habitation) with the intent to commit an offense listed in Secs. 21.08, 21.11, 22.011, 22.021, 25.02 or 20.04(a)(4)

AND - the defendant actually did the exhibiting or use OR - was a party and knew that a deadly weapon would be used or exhibited OR - the defendant was convicted of Sec. 19.02 PC murder with an affirmative finding of bias or prejudice (See Art. 42.014 C.C.P.) or the defendant is convicted of a felony with an affirmative finding of bias or prejudice and in addition, the defendant was previously convicted of an offense with such a finding. (See Section 13A)

The minimum supervision term for Intoxication Manslaughter (49.08 P.C.) is 5 years and the maximum is 10 years. The maximum supervision period for all felony offenses is 10 years. The maximum supervision period for a misdemeanor case is 2 years. A judge can increase the maximum supervision period in some circumstances. See Section 22(c) A defendant is not eligible for community supervision under this section if: -

If there is a deadly weapon affirmative finding made in either a lst or 2nd degree felony case, and the defendant is given community supervision (by a jury), the judge may impose as a condition of supervision that the defendant serve not less than 60 days or more than 120 days in ID.

the sentence exceeds 10 years

OR

Section 4 Jury Recommended Community Supervision

- the sentence is imposed for a State Jail Felony (Sec. 12.35 PC)

After punishment of imprisonment has been assessed, the jury may recommend that service of the sentence be suspended and the defendant placed on community supervision in any case provided the defendant is legally qualified. A defendant is not qualified if

A judge can not deny community supervision based solely on the defendant's inability to speak, read, write, hear or understand English. Section 3g Limitation On Judge Ordered Community Supervision

- the imprisonment term exceeds 10 years OR - the defendant is sentenced under 12.35 PC for commission of a State Jail Felony OR - the defendant does not file before the trial begins, a sworn motion that he has not been previously convicted of a felony in this or any other state, OR - if a motion is filed timely, the jury does not find the sworn statement is true OR - there is an affirmative finding of bias or prejudice (See Art. 42.014 C.C.P.) and the defendant is convicted of PC 19.02 murder or for any offense when the defendant has previously

The provisions of Section 3 do not apply to: - a defendant adjudged guilty of PC sections; 1. 19.02 (murder) 2. 19.03 (capital murder) 3. 21.11(a)(1) (indecency with a child) 4. 20.04 (aggravated kidnapping) 5. 22.021 (aggravated sexual assault) 6. 29.03 (aggravated robbery) OR 7. when it is shown that a deadly weapon (Sec. 1.07 PC) - was used or exhibited - during the commission of a felony or - during the immediate flight therefrom

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been convicted of a bias or prejudice offense. (See. Section 13A) OR - the defendant is adjudged guilty of an offense punishable under 481.134(c)(d)(e)(f) of the Health & Safety Code (Drug Free Zones). Read these sections carefully in such cases.

- 43.25 (sexual performance of a child) - 43.26 (possession or promotion of child pornography) - 21.08 (indecent exposure) - 25.02 (prohibited sexual conduct) - 20.04(a)(4) (aggravated kidnapping) with intent to violate or abuse the victim sexually - 30.02(d) (burglary of a habitation)

REMEMBER; as long as these qualifications are met, the jury can recommend community supervision for any offense.

In a misdemeanor case, the period of supervision may not exceed 2 years. The judge can increase the period of supervision as provided in Section 22(c). The judge may impose a fine and any other reasonable conditions, including confinement, that could be imposed for a defendant who was convicted and had the sentence suspended. If the defendant does not want to accept deferred adjudication, the judge must proceed to adjudicate guilt if the defendant files a motion requesting it within 30 days after a finding of guilt was deferred. After placing the defendant on community supervision, the judge must inform the defendant orally or in writing of the possible consequences of violating any condition that is imposed. Failure of the judge to inform the defendant of the consequences of violation is not ground for reversal unless the defendant shows he was harmed by the failure. The provisions of Section 15 specifying whether a defendant convicted of a state jail felony is to be confined in a county jail or state jail felony facility and establishing the minimum and maximum terms of confinement as a condition of community supervision apply in the same manner to a defendant placed on community supervision after pleading guilty or nolo contendere to a state jail felony. A court assessing punishment after adjudication of guilt of a defendant charged with a state jail felony may suspend the imposition of sentence and place the defendant on community supervision or may order the sentence to be executed, regardless of whether the defendant has previously been convicted of a felony. A court assessing punishment after adjudication of guilty of a defendant charged with a State Jail felony may suspend the imposition of sentence and place the defendant on community

If the jury recommends community supervision, the judge must grant it and the judge (not the jury) now sets the length of the supervision period during which the sentence is suspended. Section 5 Deferred Adjudication To be eligible to receive deferred adjudication, the defendant must 1. plead guilty or nolo contendre 2. not be charged with violation of any of the following PC sections; - 49.04 (driving while intoxicated) - 49.05 (flying while intoxicated) - 49.06 (boating while intoxicated) - 49.07 (intoxication assault) - 40.08 (intoxication manslaughter) 3. the judge (not the jury) must hear the evidence 4. the judge must find that the evidence substantiates the defendant’s guilt 5. the judge must find that the interest of society and the defendant will be served by granting deferred adjudication. If these qualifications are met, the judge can defer entering an adjudication of guilt and place the defendant on community supervision. In a felony case, the period of supervision may not exceed l0 years. The minimum supervision period is 5 years for a defendant charged with any of the following PC offenses, regardless of the age of the victim; - 21.11 (indecency with a child - 22.011 (sexual assault) - 22.021 (aggravated sexual assault)

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supervision or may order the sentence to be executed, regardless of whether the defendant has previously been convicted of a felony. When there has been a violation of a term, the defendant may be arrested and either held in jail or released on bond. See. Sec. 21. The defendant is entitled to a hearing limited to a determination of whether to proceed to adjudication. No appeal may be taken from this determination. If guilt is adjudicated, all proceedings, including the assessment of punishment, pronouncement of sentence, granting of community supervision and the defendant’s right to appeal continue as if the adjudication of guilt had not been deferred. On expiration of the supervision term if guilt has not been adjudicated, the court shall dismiss the proceedings and discharge the defendant. The judge can dismiss the proceedings at any time prior to the expiration of the supervision period if the best interest of society and the defendant will be served. There thus is no minimum period of supervision that must be served before the proceedings can be dismissed. However, a judge may not dismiss a case early if the defendant is required to register as a sex offender. A dismissal and discharge is not a “conviction” for purposes of disqualification’s and disabilities imposed by law for conviction of an offense. But upon conviction of a subsequent offense, the fact that the defendant has previously received deferred adjudication is admissible before the court or jury to be considered on the issue of penalty. If the defendant is placed under supervision for the attempt, commission, conspiracy or solicitation to commit an offense under Sections 20.02, 20.03 or 20.04, if the judge determines that the victim was 17 years old or younger, an affirmative finding of that fact must be filed. If deferred adjudication is granted, the Clerk's record is not confidential.

date the execution of the sentence actually begins in ID. A defendant is eligible if 1. the defendant is otherwise eligible to receive community supervision from a judge (See Section 3) AND 2. the defendant has never before been incarcerated in a penitentiary serving a felony sentence AND 3. in the opinion of the judge, the defendant would not benefit from further imprisonment. Before expiration of the 180 day period, the judge may suspend further execution of the sentence and place the defendant under community supervision. This action can be taken on -

on the Court’s own motion on written motion of the defendant or on the motion of the attorney representing the state.

On request, the Clerk shall obtain a copy of the defendant’s record. The ID or Sheriff shall forward a “full and complete” copy of the defendant’s record. If the motion is made by the defendant, a copy of the motion must be immediately delivered to the prosecutor. The judge may deny the motion without a hearing. However, the motion can not be granted without a hearing where both the defendant and State can present evidence. If the judge does not place the defendant on community supervision, he must then complete the sentence as ordered. This “shock” treatment had little value when prison overcrowding effectively prevented offenders from ever getting to ID. However, new ID capacity may well make this a valuable consideration in the proper case. Note that only the judge who originally sentenced the defendant may suspend further

Section 6 Continuing Court Jurisdiction in Felony Cases For an eligible defendant, jurisdiction of the sentencing court continues for 180 days from the

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execution. (See Section l0(a) ) Exceptions are made where the judge is deceased, etc.

A defendant is eligible if: 1. In the opinion of the judge, the defendant would not benefit from further imprisonment. 2. the defendant is otherwise eligible for community supervision (See Section 3). 3. the defendant is between 17 and 26 years old and physically and mentally capable of participating in a program that requires strenuous physical activity. 4. the defendant is not convicted of a State Jail felony.

Section 7 Continuing Jurisdiction in Misdemeanor Cases When a county jail term is imposed in a misdemeanor case, jurisdiction of the court continues for l80 days from the date the execution of the sentence actually begins in jail. The judge may suspend further execution of the sentence and place the defendant on community supervision within that l80 days period. This action can be taken -

On the 76th day after entering ID, they are required to send a progress report to the judge. This program is specifically authorized by Section 499.052 of the Government Code. The failure of ID to follow the judge’s recommendation is not a basis for the judge to find them in contempt of court.

on the court’s own motion on the written motion of the defendant, or on motion of the attorney representing the State.

Any offense or offender is eligible, provided that in the opinion of the judge, the defendant would not benefit from further confinement. On request, the Clerk shall request a copy of the defendant’s record while confined and the agency holding the defendant shall immediately forward such record. The judge may deny the motion without hearing, but may not grant the motion without holding a hearing and allowing both the State and defendant to present evidence.

Section 9 Presentence Investigations Before imposing sentence in a felony case or misdemeanor case, unless an exception exists the judge shall direct a CSO to report to the judge in writing: 1. 2. 3. 4.

Section 8 State Boot Camp Program For eligible defendants, jurisdiction of the sentencing court continues in a felony case for 90 days from the date the defendant is actually received in ID. After the defendant has been in ID at least 75 days but before 90 days, the judge may suspend further execution of the sentence and place the defendant on community supervision. The judge must clearly indicate in an order recommending placement in the boot camp program that jurisdiction is not being retained for the purposes of Section 6 (Shock Community Supervision).

the circumstances of the offense the amount of victim restitution the defendant’s criminal and social history any other information related to the offense or the defendant requested by the judge.

The report may contain a sentencing recommendation. The report must contained a proposed supervision plan describing the programs and sanctions the CSCD would provide if the defendant was placed on community supervision. The judge is not required to order a report in a misdemeanor case if: 1. the defendant requests that no report be made and the judge agrees, or

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2. the judge finds there is sufficient information in the record to permit a meaningful exercise of sentencing discretion AND the judge explains this finding on the record.

If the judge determines that alcohol or drug abuse contributed to the commission of the offense, the judge shall direct the CSO or others to conduct an evaluation and recommendation for treatment. The evaluation shall be made

The judge is not required to order a report in a felony case if:

1. after arrest and before conviction, if requested by the defendant. 2. after conviction and before sentencing if the judge is to assess punishment. 3. after sentencing and before entry of final judgment if the jury assesses punishment, or 4. after community supervision is granted if the evaluation is ordered as a condition of supervision.

1. punishment is to be assessed by the jury. 2. the defendant is convicted of capital murder. 3. the only available punishment is imprisonment 4. a plea bargain exists for imprisonment and the judge intends to follow the agreement. If a presentence report is not required in a felony case, the judge shall direct that a postsentence report containing most of the same information be completed and filed with the Clerk not later than 30 days after sentence is pronounced or deferred adjudication is granted. The Clerk is required to file the postsentence report with the papers of the case.

If it appears to the judge that the defendant has a mental impairment, the presentence investigation shall include a psychological evaluation to determine, at a minimum, IQ and adaptive behavior score. The judge may order or subpoena information necessary to complete the presentence or postsentence. The report and all information obtained are confidential and may be released only to authorized persons listed in the statute. Medical and psychiatric records obtained by court order are no longer required to be kept separate. If a presentence report in a felony case is not required, the judge may still require that one be prepared. If the defendant is a sex offender, the report information may also be released to those mental health professionals listed in the statute.

The judge may not inspect the presentence report and the contents may not be disclosed to anyone unless; 1. the defendant pleads guilty or nolo contendere or is convicted of the offense, or 2. the defendant in writing authorizes the judge to inspect the report. Before sentencing, the judge shall permit the defendant or his counsel and the prosecutor to read the report. The judge shall allow the defendant or his attorney to comment on the presentence or postsentence report and, with the approval of the judge, to introduce testimony or other information alleging a factual inaccuracy in the report.

Section 10 Authority to Impose, Modify or Revoke Community Supervision Only the court in which the defendant was tried may grant community supervision, impose conditions, alter conditions and revoke community supervision or discharge the defendant. After community supervision has been granted, authority exists for the court to transfer the case to another court of the same rank. The receiving

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court then obtains full responsibility over the case and the defendant. The sentencing judge may authorize the CSO or a magistrate appointed by the court to modify the conditions for the limited purpose of transferring the defendant to different programs within the community supervision continuum of programs and sanctions. If the CSO or magistrate receiving this authority modifies a condition, a copy must be placed in the court’s file if the defendant agrees. If the defendant does not agree, the matter must be referred to the court.

The judge may not order the defendant to make any payments except for those items expressly authorized by law. The judge must require the defendant to demonstrate at least a 6th grade education. If that level has not been obtained, the judge must require as a condition that the defendant attain it, unless the judge finds that the defendant is incapable of doing so. If it appears the defendant is mentally ill, the judge may require as a condition that the defendant submit to inpatient or outpatient care. If the defendant is a sex offender, the Judge shall require registration as a condition. The defendant may be required in any manner required by the judge to provide public notice of his offense. If the defendant's offense is a violation of Section 21.11 or 22.011(a)(2), they may be required to make one payment not to exceed $50 to a children's advocacy center. If the offense involved family violence, the judge may order a payment not to exceed $100 to be made to a family violence shelter.

Section 11 Basic Conditions Of Community Supervision The judge shall determine the conditions of community supervision and may, at any time, during the period of community supervision alter or modify the conditions. (NOTE: S.B. 15, effective 9-1-95 eliminated prior law which prevented modification unless compliance was made with Sections 10 and 22. Those sections required a hearing before modification could be made.)

Section 12 Confinement As A Condition Of Community Supervision

Any reasonable condition can be imposed that is designed to: 1. protect or restore the community

In a misdemeanor case, the judge may require that as a condition of supervision, the defendant serve a period of confinement in the county jail not to exceed 30 days. In a felony case, that period can not exceed 180 days. If a judge orders that as a condition of supervision, the defendant must serve a term in a community corrections facility (See Section 18), the jail confinement term when added to the term imposed under Section 18 can not exceed a total of 24 months. (See new amendment to Section 18). Confinement may be imposed at any time and the total may be imposed in increments.

OR 2. protect or restore the victim OR 3. punish the defendant OR 4. rehabilitate the defendant OR 5. reform the defendant. Conditions of probation MAY include, but SHALL NOT BE LIMITED TO the specific conditions listed in the statute. A new condition, shown as Section (21) requires in addition to reimbursing the crime victims compensation fund, an alternative payment of up to $50 for a misdemeanor offense and up to $100 for a felony offense. The Court may also order the defendant to give a DNA sample.

Section 13 DWI Community Supervision This section is very complex and difficult to understand. There are various provisions,

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prohibitions and exemptions to all sort of administrative provisions. Of special interest are new provisions dealing with mandatory confinement as a condition of community supervision. If a judge grants community supervision for an offense listed under PC Chapter 49, the judge shall require as a condition of supervision that the defendant submit to:

Section 13A Community Supervision For Offense Committed Because Of Bias Or Prejudice If there is an affirmative finding that the offense was committed because of Bias or Prejudice (See Sec. 42.014 C.C.P. and Sec. 12.47 PC), and if the defendant is placed on community supervision, the judge shall require as a term of supervision

1. not less than 3 days of confinement (continuous confinement was deleted) in a county jail under PC 49.09(a) (1 prior conviction) 2. not less than 10 days of confinement (continuous confinement was deleted) in a county jail under PC 49.09 (b) or (c) (2 prior convictions) 3. not less than 30 days of confinement (continuous confinement was deleted) in a county jail under PC 49.07 (Intoxication Assault)

1. that the defendant serve a term of not more than l year in ID if the offense is a felony other than under Section 19.02 PC (Murder), OR 2. serve a term of not more than 90 days in jail if the offense is a misdemeanor. The court may not grant community supervision on its own motion or on recommendation of the jury if there is an affirmative finding under Sec. 42.014 C.C.P. if

It is now also provided that the confinement imposed as a condition of community supervision may not be credited towards service of the sentence upon revocation. It is also now required in certain circumstances that as a condition of supervision, the judge must order installation of a deep lung interlock device on the defendant’s vehicle. If a person is convicted of violating PC 49.04 49.08 and the person is under 21 years old, the judge shall order

1. the offense is murder under Section 19.02 PC OR 2. the defendant has previously been convicted of an offense in which there was an affirmative finding under Section 42.012 C.C.P. Also note Section 16(e). It permits the court to order the defendant to perform community service at a project designated by the court that primarily serves the person or group who was the target of the defendant under Art. 42.014 C.C.P. If imposed, a minimum of 100 hours must be ordered in a misdemeanor case and a minimum of 300 hours in a felony case.

1. that the defendant’s drivers license be suspended for 90 days beginning on the date the defendant is placed on community supervision AND 2. that the defendant not operate a motor vehicle unless the vehicle is equipped with a deep lung interlock device.

Section 13B Defendants Placed On Community Supervision For Sexual Offenses Against Children

If the defendant is required to register as a sex offender under Art. 6252-13c.1, VATS, the judge shall require the registration as a condition of community supervision; and the payment of costs involved.

If a judge grants community supervision when the judge determines that the victim is a child as defined in Sec. 22.011(c) (a person younger than

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17 years who is not the spouse of the actor) for any of the following PD offenses: - 43.25 (sexual performance of a child) - 43.26 (possession or promotion of child pornography) - 21.08 (indecent exposure) - 21.11 (indecency with a child) - 22.011 (sexual assault) - 22.021 (aggravated sexual assault) - 25.02 (prohibited sexual conduct) - 20.04(a)(4) (aggravated kidnapping with intent to abuse sexually) - 30.02(d) (burglary of a habitation)

1. it interferes with the ability of the defendant to attend school or hold a job and consequently constitutes an undue hardship for the defendant OR 2. the order is broader than is necessary to protect the public, given the nature and circumstances of the offense. The CSO may permit the defendant to enter the child safety zone on an event-by-event basis if 1. the defendant has served at least 2 years under community supervision AND 2. the defendant enters the zone as part of a program to reunite with the defendant’s family AND 3. the defendant presents to the officer a written proposal specifying where the defendant intends to go within the zone, why, and with whom the defendant is going and how the defendant intends to cope with any stressful situations that occur AND 4. the sex offender treatment provider treating the defendant agrees with the CSO that the defendant should be allowed to attend the event AND 5. the officer and the treatment provider agree on a chaperon to accompany the defendant and the chaperone agrees to perform that duty.

The judge shall establish a child safety zone applicable to the defendant by requiring as a condition of community supervision that: 1. the defendant not supervise or participate in any program that includes as participants or recipients persons who are 17 years of age or younger and that regularly provides athletic, civic or cultural activities, OR 2. go in, on or within a distance specified by the judge of a premises where children commonly gather, including a school, daycare facility, playground, public or private youth center, public swimming pool or video arcade facility AND 3. attend psychological counseling sessions for sex offenders with an individual or organization which provides sex offender treatment or counseling as specified by or approved by the judge or the CSCD officer supervising the defendant.

Section 10(a) does not prohibit a CSO from altering a condition of community supervision by permitting a defendant to enter a child safety zone. Playground, premises, school, video arcade facility and youth center have the same meaning as shown in Section 481.134 of the Health and Safety Code.

A CSO shall contact the provider before the defendant is released, establish the date, time and place of the first session between the defendant and the provider and request the provider to immediately notify the officer if the defendant fails to attend the first or any subsequent session. A judge is not required to impose these conditions if the defendant is a student at a primary or secondary school. A defendant may request that the court modify the child safety zone if;

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This condition may be imposed only if

Section 13C Making Firearm Accessible To A Child

1. the defendant is placed on community supervision AND 2. the defendant is charged with or convicted of an offense other than - 21.11 PC (indecency with a child) - 22,011 PC (sexual assault) - 22.021 PC (aggravated sexual assault) OR - criminal attempt of a felony under Section 21.11, 22.011, 22.021 PC AND 3. the judge makes an affirmative finding that - drug or alcohol abuse significantly contributed to the commission of the crime or violation of community supervision AND - the defendant is a suitable candidate for treatment and meets the suitability criteria established by the Texas Board of Criminal Justice under Section 493.009(b) Government Code.

If the defendant is convicted under 46.13 P.C. - Making Firearm Available To A Child, the Judge may require a public service activity and attendance at a firearms course. Section 13D Violent Offenses Protecting Children For a 3g or affirmative finding offense, the court may establish a child safety zone and limit the defendant's access to children 17 years old or younger. Section 14 Child Abusers, Sex Offenders And Family Violence Offenders; Special Conditions A court granting community supervisions to a defendant convicted of an offense listed in Art. 17.41(a) C.C.P. may require as a condition that the defendant not directly communicate with the victim, go near the victim’s home or school. The court may give the defendant limited access to the victim. But to the extent that criminal conditions conflict with an existing court custody order, the criminal provisions prevail only for a maximum of 90 days. There are also a number of discretionary conditions the court may impose including payment for the victim’s counseling costs.

The judge shall also require as a condition of community supervision that the defendant participate in a drug or alcohol abuse continuum of care treatment plan. The judge must assess a fee not to exceed 25% of the defendant's gross income while the defendant is in an aftercare residential facility. NOTE; The department (TDCJ) shall prove at least 5200 beds for (this purpose). The original law required a minimum of 12,000 beds.

Section 14 (yes, there are two Section 14’s) Substance Abuse Felony Program

Section 15 Procedures Relating To State Jail Felony Community Supervision

If a judge places a defendant on community supervision, the court may require as a condition that the defendant serve an indeterminate term of not more than l year or less than 90 days in a substance abuse facility authorized by Section 493.009 Government Code.

On conviction of a state jail felony offense committed prior to September l, l997, the judge shall suspend imposition of sentence and place the defendant on community supervision unless the defendant has previously been convicted of a felony, in which event the judge MAY

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- suspend the imposition of sentence and place the defendant on community supervision OR - order the sentence to be executed.

supervision and dispose of the case in the manner provided in Section 23. In addition to imposing "up front" time, when a defendant violates a condition of supervision, after a hearing under Section 21, and impose a sanction under Section 22; The judge can specifically order as a condition of supervision that the defendant serve a term of not less than 90 or more than 180 days in the State Jail.. It appears that if there is a second violation, that this process can be repeated. For offenses committed prior to 9-1-97, the court retains jurisdiction over a defendant sentenced to a State Jail until the lst anniversary date after the defendant was received into custody of the State Jail. However, for offenses committed after 9-1-97, the court retains jurisdiction during the entire time the defendant is in the state jail. At any time after the 75th day the defendant was received into custody by the State Jail, the judge may suspend further execution of sentence and place the defendant on community supervision. (Note; language “an before the first anniversary of the date the defendant is received into the custody of the state jail” has been eliminated.)

The judge may also suspend in whole or in part the imposition of a fine. However, for offenses committed after September l, l997, the Judge may direct sentence ANY OFFENDER to the State Jail. The minimum supervision period is 2 years and the maximum is 5 years. However the judge may extend the maximum period of community supervision under this section to no more than l0 years. The judge may impose any condition of community supervision the judge could impose for any other felony offense except that the judge may impose a period of confinement in a county jail under Section 5 or 12 only if the term does not exceed 90 days. A judge may impose “up front” confinement at the beginning of the period of community supervision. This term involves confinement in a State Jail for a term of not less than 90 days or more than 180 days OR a term of not less than 90 days or more than l year if the defendant is convicted of a state jail felony offense under Section 481.112 (manufacture or delivery of Penalty Group l controlled substance), 481.113 (manufacture or deliver of Penalty Group 2 controlled substance) or 481.120 (delivery of marijuana), Health and Safety Code. A judge may not require a defendant to submit to both confinement in the county jail under Section 5 or 12 and confinement in a State Jail. If after a hearing it is determined that the defendant violated a condition of supervision, the judge may modify the terms to require that the defendant serve a period in the State Jail of not less than 90 days or more than 180 days. For purposes of “up front” time, a defendant is considered to have been previously convicted of a felony regardless of whether the sentence for the previous offense was actually imposed or was probated and suspended. If a condition is violated, after a hearing provided in Section 21 the judge can revoke

This suspension may be - on the judge’s own motion - on motion of the attorney for the State - on motion of the defendant When the defendant or the attorney representing the State filed a written motion requesting suspension, the Clerk if requested to do so by the Judge shall request a copy of the defendant’s record from either the State Jail or Sheriff. If the defendant files a written motion seeking suspension, he must immediately deliver a copy to the State’s attorney. The judge may deny the motion without a hearing but may not grant the motion without holding a hearing and allowing the State and defendant the opportunity to present evidence. A defendant confined in a state jail facility after revocation of community supervision does not earn good conduct time for time served in the facility. However, effective 9-1-97, all defendants confined in a State Jail either after revocation or by a direct sentence do not earn any good time credit.

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A judge may credit after revocation, time served in the county jail - from the time of arrest until sentencing - (eliminated was time served as a condition of community supervision and time served after modification of supervision terms. However, after 9-1-97, a judge may give or deny county jail time credit whether the defendant gets to the State Jail either by revocation or direct sentence.

once before convicted of a felony, on conviction he shall be punished for a Second Degree Felony. The normal habitual offender statute, PC 12.42 has specifically eliminated covering any state jail felony offenses. A previous conviction for a State Jail Felony may not be used to enhance or habitualize other felony offenses under PC 12.42 (b)(c)(d). IF it is shown on the trial of a Class A misdemeanor that the defendant has before been convicted of a Class A misdemeanor or any degree of felony, on conviction he shall be punished by:

A judge must credit against sentence after revocation any time served in the State Jail after sentencing. A judge may not reduce the supervision period and the defendant must remain under supervision for the entire supervision period originally imposed by the Court. (See Section 20). NOTE: Section 507.002 of the Government Code was amended to provide that the State Jail Division may confine in a State Jail defendants required by a judge to serve a term of confinement in a State Jail following a grant of deferred adjudication for or conviction of an offense listed as a State Jail Felony. NOTE: A court assessing punishment after an adjudication of guilt of a defendant charged with a State Jail felony may suspend the imposition of sentence or order the sentence to be executed, regardless of whether the defendant has previously been convicted of a felony.

1. a fine not to exceed $4000, or 2. confinement in jail for any term of not more than l year or less than 90 days, or 3. both such fine and confinement. IF it is shown on the trial of a Class B misdemeanor that the defendant has been before convicted of a Class A or Class B misdemeanor or any degree of felony, on conviction he shall be punished by: 1. a fine not to exceed $2000, or 2. confinement in jail for any term of not more than 180 days or less than 30 days or 3. both such fine and confinement. Sec. PC 12.44 Reduction; a court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor.

NOTE; ENHANCEMENT PUNISHMENT RANGES IF it is shown on the trial of a state jail felony punishable under PC 12.35(a) that the defendant has previously been finally convicted of two state jail felonies, on conviction the defendant shall be punished for a Third Degree felony. IF it is shown on the trial of a state jail felony punishable under PC 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction becoming final, on conviction the defendant shall be punished for a Second Degree Felony. IF it is shown on the trial of a state jail felony punishable under PC 12.35(c), or on the trial of a third degree felony that the defendant has been

Section 15A Enhanced Disorderly Conduct & Public Intoxication When a defendant is convicted of an enhanced disorderly conduct or public intoxication offense, the judge shall suspend sentence and place the defendant under community corrections. The judge shall require the defendant to precipitate in testing and assessment outlined in the statute. This provision does not apply if the defendant was previously convicted of a similar enhanced offense.

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-

Section 16 Community Service A judge must order as a condition of community supervision that the defendant work a specified number of hours at a community service project or projects. There are exceptions for defendants who are physically or mentally incapable of compliance. Minimum and maximum hours of community service are established for each degree and class of offense. The following language was eliminated; “if the judge modifies the defendant’s terms of community supervision to include confinement in a State Jail felony facility, the judge shall order the defendant to continue to work towards fulfillment of his work requirements during this period of confinement.

-

a substance abuse treatment facility a custody facility or boot camp a facility for an offender with a mental impairment an intermediate sanction facility

NOTE; recent legislation eliminated a State Jail Facility under the definition of a Community Corrections Facility. A judge may not require that a defendant serve a term in a community corrections facility of more than 24 months. A defendant may not earn good conduct credit for time spent in a community corrections facility or apply such time to a prison sentence if supervision is revoked. If a judge imposed confinement in a community corrections facility, the judge can not impose a subsequent term in a community corrections facility or jail that, when added to the terms previously imposed, exceeds 36 months.

Section 17 Change of Residence; Leaving The State

Section 19 Fees

A defendant may change his residence by application to the CSO. The change shall be subject to the judge’s consent and subject to such regulations as the judge may require. Any defendant who removes himself from the state without permission of the judge shall be considered a fugitive from justice and subject to extradition. NOTE: All out of state transfers must comply with the provisions of the Interstate Compact Act. See ARt. 42.11.

The judge shall impose a fee of not less than $25 or more than $40 per month to cover the cost of supervision. Provisions are made to waive the fee in special cases. The judge must also impose an additional fee of $5 per month on each defendant placed on community supervision for PC offenses: - 21.08 (indecent exposure) - 21.11 (indecency with a child) - 22.011 (sexual assault) - 22.021 (aggravated sexual assault) - 25.02 (prohibited sexual conduct) - 25.06 (harboring runaway child) - 43.25 (sexual performance of a child) - 43.26 (possession or promotion of child pornography) These fees are to be used for the sexual assault program established under Section 44.0061 of the Health and Safety Code.

Section 18 Community Corrections Facilities Community Correction Facilities are described in Article 42.13 C.C.P., Section 1(b)(2) as; - a physical structure, established by a judicial district, included in the community justice plan, operated by the department or under contract, for the purpose of confining persons on community supervision, providing services and programs to modify criminal behavior, deter criminal activity, protect the public, and restore victims of crime. It includes; - a restitution center - a court residential treatment center

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confined in a penal institution without a hearing if the defendant waives his right to a hearing. In a felony case, the state may amend the motion to revoke any time up to 7 days before the hearing date. The motion may not thereafter be amended except on the showing of good cause and in no event may the State amend the motion once the hearing has begun. The judge may continue the hearing for good cause shown by either the State or defendant. A defendant has a right to counsel at the hearing.

Section 20 Reduction Or Termination Of Community Supervision A judge may dismiss community supervision for a person convicted of an offense and placed on community supervision after completion of 1/3 of the supervision term or 2 years, whichever is less. When such a discharge takes place, the judge may set aside the verdict or permit the defendant to withdraw his plea, and dismiss the accusation, complaint, information or indictment. The defendant will thereafter be released from all penalties and disabilities resulting from the offense or crime for which he was convicted or to which he pleaded guilty, except that:

Section 22 Continuation Or Modification After hearing, if the judge continues community supervision, the judge may impose any conditions the judge determines are appropriate, including:

- proof of conviction or plea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense. Early release provisions do not apply to a defendant convicted of: - PC 49.04 (driving while intoxicated) - PC 49.05 (flying while intoxicated) - PC 49.06 (boating while intoxicated) - PC 49.07 (intoxication assault) - PC 49.08 (intoxication manslaughter) - Any State Jail Felony - Any offense that requires sex offender registration.

1. additional community service. 2. increase the period of community supervision 3. increase the defendant’s fine. The additional funds must be placed in a fund to aid the operation of the CSCD. 4. place the defendant in a substance abuse felony punishment program, provided the defendant is eligible. 5. extend the period of supervision as often as the judge determines is proper, but the total term can not exceed 10 years in a felony or 3 years in a misdemeanor.

Section 21 Violation Of Community Supervision: Detention And Hearing

A court may extend a period of community supervision at any time during the period of supervision or if a motion to revoke is filed before the period of supervision has ended, before the first anniversary of the date on which the period of supervision expires.

At any time during the supervision period, the judge may issue a warrant for violation of any condition. A defendant so arrested may be held in the county jail until he can be taken before the judge. If the defendant is not released on bond, on motion by the defendant, he shall be brought before the judge within 20 days of the filing of a revocation motion. After hearing, the judge may continue, extend, modify or revoke the community supervision. A procedure exists to permit the judge to revoke the community supervision of a defendant

Section 22A Extending Supervision For Sex Offenders This provision applies only to defendants given a suspended sentence or placed on deferred adjudication for certain sex offenses listed in Secs. 21.11, 22.011 or 22.021 P.C.

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At any time during the supervision period, if the judge determines after hearing that the defendant has not sufficiently demonstrated a commitment to avoid future criminal behavior and that releasing the defendant from supervision would endanger the public, the judge can extend the supervision period for a period not to exceed 10 additional years. This extension process can only occur once.

Art. 42.037 Restitution In addition to any fine that may be imposed, a Court may order restitution be paid to the victim. If the Court does not order restitution, "the court shall state on the record the reasons for not making the order." This Article provides in great detail the method of calculating victim restitution and other operative procedures. The statute specifically provides that if restitution is ordered, it must be made a condition of probation or parole and collected through either process.

Section 23 Revocation After revocation, the judge may proceed to dispose of the case as if community supervision was not granted, or may reduce the term originally assessed to any term of not less than the minimum for the offense. No part of the time served under community supervision shall be considered part of the time he shall be sentenced to serve. The defendant is entitled to appeal revocation.

Art. 42.08 Cumulative Or Concurrent Sentences Unless the judge directs otherwise, 2 or more terms run concurrently as a matter of law. If probation is involved, the cumulative total of all felony suspended sentences can not exceed 10 years or 3 years in misdemeanor cases. If the offense was committed while the defendant was confined in the Institutional Division, the Judge must order that the sentence be cumulated upon the original sentence. If there are 2 sentences and the Court suspends the imposition of sentence in l case, the Court may not order a sentence of confinement to begin on the completion of the suspended sentence.

Art. 42.023 Judge May Consider Alternative Sentencing "Before pronouncing sentence on a defendant in a criminal case, the judge may consider whether the defendant should be committed for care and treatment under Sec. 462.081, Health & Safety Code." Special Jail Confinement Provisions

Punishment Election Art. 42.033 permits jail terms in specific situations to be served during off-work hours. Art. 42.034 makes provisions for a county work release program. Art. 42.035 permits jail terms in specific situations to be served by electronic monitoring and house arrest. Art. 42.036 permits jail terms in specific situations to be served by the performance of community service.

Remember that unless a timely election is filed to have the jury assess punishment, it is the responsibility of the judge to set punishment in the case. Art. 37.07, Sec. 2(b).

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Ex Parte Welch 981 SW2d 183 (1998) A defendant who received felony deferred adjudication and was successfully discharged, is entitled to be considered for jury granted probation in a subsequent felony prosecution. That is because the defendant was not "convicted" in the first case, and thus eligible for jury probation in the second prosecution. See Art. 42.12 C.C.P. Section 4(e), 5(e)

Recent Cases Court of Criminal Appeals Busby v. State 984 SW2d 627 (1998) A court does not have authority to require a probationer to pay the cost of a special prosecutor in the case as a condition of community supervision. Such a payment is not "expressly authorized" by law; is not statutorily authorized in art. 42.12; and does not constitute "court cost." See Art. 42.12 C.C.P. Section 11(a)(b)

Speth v. State 6 SW3d 530 (1999) Defendant was on deferred adjudication for aggravated assault on a peace officer. He was indicted for indecency with a child, tried and found not guilty by a jury. Trial judge revoked the deferred adjudication finding the indecency allegations true, found the defendant guilty of aggravated assault on a peace officer, and ordered probation. The defendant then appealed. The Court held that the defendant could not challenge probation conditions for the first time on appeal of revocation. The defendant must object at trial when the conditions are imposed unless the condition is statutorily prohibited. The defendant can waive even unreasonable probation terms by entering into a probation contract without objection. Probation conditions not objected to are affirmatively accepted and any objection is waived.

Connolly v. State 983 SW2d 738 (1999) When deferred adjudication is revoked after the supervision period had ended, statute prohibited an appeal based on allegation the state did not use due diligence in apprehending the defendant. See Art. 42.12 C.C.P. Section 5(a) "On violation of a condition of deferred adjudication community supervision...the defendant may be arrested and detained as provided in Section 21 of (Art. 42.12). The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination." Ditto v. State 988 SW2d 236 (1999)

Brecheisen v. State 4 SW3d 761 (1999) In order for a court to have jurisdiction to revoke probation after the expiration of the supervision period, two things must occur prior to expiration: (1) the state must file a motion to revoke and (2) a capias based on the motion must issue. The State is required to use due diligence in executing the capias.

Von Schounmacher v. State 5 SW 3d 221 (1999) The defendant entered into a plea bargain agreement with a 10 year sentencing cap. The state did not recommend probation in any form. The judge granted deferred adjudication. Upon violation of the deferred adjudication, the trial judge had no further obligation to comply with the original plea bargain and could impose a sentence in excess of 10 years.

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Lack of due diligence is a plea in bar or defense which must be raised by the defendant at the revocation hearing. Once the defendant raises the issue, the burden of persuasion shifts to the state to show that it exercised due diligence. Remedy is the dismissal of the motion to revoke.

Ex Parte Fulce 993 SW2d 660 (1999) Where the period of supervision has expired, Court lacked authority to extend length of supervision or later revoke because of violation during the extended term. Cabla v. State 6 SW3d 543 (1999) Restitution may not be ordered paid to other victims not involved in the specific prosecution, even if they suffered because of the defendant's scheme. Defendant can be ordered to pay restitution even if the debt has been discharged in Chapter 7 bankruptcy proceedings.

Pearson v. State 994 SW2d 176 (1999) After deferred adjudication is revoked, the court must then conduct a punishment hearing. See Issa v. State, 826 SW2d 159 (Tex.Crim. App. 1992) and Borders v. State, 846 SW2d 834 (Tex. Crim. App. 1992). However, if the defendant in fact has the opportunity to present punishment evidence during the revocation hearing, no error occurs. In Pearson, the defendant testified during the revocation hearing. After revocation, the Court asked: "...you have already testified on your own behalf. Is there anything you want to offer on your own behalf by way of allocution or arguments about what should happen on disposition? Anything you want to tell about what I ought to do on the ---let's assume I revoke by virtue of the allegations, anything you want to offer on what the term may or may not be, should I continue you, some sort of alternative sanction, if I do find the allegations to be true, what term should I consider? Anything you want to offer on that? The Court held that it is immaterial that the opportunity to present (punishment) evidence came before or after revocation, unless the defendant made a specific objection. "Appellant has the opportunity to present evidence during the proceedings. That is all that is required."

Campbell v. State 5 SW3d 693 (1999) The judge may not order restitution for an offense for which the defendant is not criminally responsible. See Art. 42.12 C.C.P. Section 11(a)(8) The amount of restitution that can be ordered paid to the victim of the offense is not limited by the theft value of the offense of conviction. Without the agreement of the defendant, the court cannot order restitution to other victims unless their losses had been adjudicated in the case. Manuel v. State 994 SW2d 658 (1999) A defendant may only raise issues relating to the original plea proceedings and evidentiary sufficiently only when placed on deferred adjudication. Such issues cannot be raised for the first time when deferred adjudication is revoked. See Art. 44.01(j) C.C.P.

Ex Parte Roberts 987 SW2d 575 (1999) When probation is revoked, a defendant is not entitled to receive credit on the sentence for any time spent in a community correction facility while under probation supervision. See Art. 42.12 C.C.P. Section 18(c)

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State v. Webb 12 SW3d 808 (2000) A state jail felony can only be enhanced to a Second Degree Felony. Once that level is reached, the offense can not be then enhanced again to habitual offender status.

Records prepared by probation officer were not done in either an adversarial or investigative context. Information regarding the defendant's reporting was an unambiguous factual matter and not an issue susceptible to any degree of subjectiveness. See Rule 803(6)(8)(b) Rules of Evidence

Whitelaw v. State _____ SW 3d ______ (Oct. 11, 2000)

Margoitta v. State 10 SW3d 416 Tex. App. Waco (2000) After appeal of a revocation order, the court had authority to modify conditions of probation to mirror conditions of bail set pending appeal. See Art. 42.12 C.C.P. Section 11(a) See Art. 44.04(c) C.C.P.

A trial court is always required to order a presentence report when the defendant requests one. Daniels v. State _____ SW3d _____ (Oct. 11, 2000) Any issue related to the granting of deferred adjudication must be appealed at the time. Such issues can not be raised later when supervision is revoked.

Brooks v. State 995 SW2d 762 Tex. App. San Antonio (1999) A single plea of true to an allegation of probation violation is sufficient to support revocation.

Ex Parte Busby ____ SW3d ____ (March 7, 2001)

McKelvy v. State 5 SW3d 321 Tex. App. Houston(14) (1999) Lack of cooperation on the part of defendant was not sufficient to show due diligence in apprehending him. See Art. 42.12 C.C.P. Section 3 A 7 year delay in setting a hearing shows the state's failure to use due diligence. Shorter delays have been found to be unreasonable : Langston v. State, 800 SW2d 553 (Tex. Crim. App. 1990) - 10 months; Rodriguez v. State, 804 SW2d 516 (Tex. Crim. App. 1991) - 2 years; Holtzman v. State, 866 SW2d 728 (Tex. App. Hous. (14) 1993) - 5 years and 6 months. "McKelvy was twice arrested and held on the probation revocation warrants. He was twice released on bonds which on their face showed appellant's address. Further, the State was contacted by McKelvy's attorney who requested

Where shock probation was granted after jurisdiction was lost, defendant was entitled to credit for all time while released on probation. RECENT CASES COURTS OF APPEAL Greer v. State 999 SW2d 484 Tex. App. Houston. (14) (1999) Probation file is admissible at a revocation hearing under the public records exception to the hearsay rule.

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that he be notified when a hearing could be scheduled on the motions to revoke. Because the State failed to explain the 7 year delay between issuance of warrants and the hearing...it failed to carry its burden to show due diligence in apprehending McKelvy."

Gutierrez v. State ____ SW3d ____ Tex. App. Corpus Christi April 12, 2001 State must use due diligence in locating defendant after it filed motion for revocation. If diligence can not be shown, revocation is invalid. (here 3 telephone calls in almost 3 years)

Sanchez v. State 989 SW2d 409 Tex. App. San Antonio (1999) Trial Court denies due process if it actually assesses punishment after revocation consistent with the punishment it has previously announced it would assess upon revocation. Trial judge stated; "Are you aware that just telling me that condition 13 is true would be enough for the court to grant the motion to revoke? If I do that, you go to prison for 10 years on the aggravated sexual assault and 5 years on the indecency." In Jefferson v. State, 803 SW2d 470 (Tex. App. Dallas, 1991), the judge promised the defendant at the time he was placed on deferred adjudication that he would receive 20 years upon any violation. In Cole v. State, 757 SW2d 864 (Tex. App. Texarkana, 1988), the judge stated: "If you come back in here for any reason whatsoever, there won't be an opportunity to give me an excuse. You get the 75, okay."

Dunbar v. State Tex. App. Houston (1) (April 12, 2001) Testimony of probation officer that defendant admitted using alcohol was sufficient to support revocation.

Herrera v. State ____ SW3d Tex. App. San Antonio (2000) Plea agreement where state makes no probation recommendation or does not address it at all, but sets a cap on punishment, is satisfied when the court grants deferred adjudication. Imposition of a higher sentence is not precluded upon revocation. Bawcom v. State 24 SW3d 613 Tex. App. Houston (1) (2000)

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