Deborah Earley, Blanco County Attorney · State, 309 S.W. 3d 767 (Tex. App-Dallas 2010); Burt v....

Deborah Earley, Blanco County Attorney

The Basics

➢Pretrial Intervention/Diversion

➢Deferred Adjudication

➢Conviction with Probation

➢Maximum of 2 years for misdemeanor

➢Minimum of 1 year for burglary of a vehicle offense punishable as a Class A misdemeanor with a minimum term of confinement of 6 months under Penal Code §30.04

➢Maximum of 30 days confinement in a misdemeanor case

➢A judge may impose a term of confinement as a condition of community supervision at the time defendant is placed on supervision or at any time during the supervision period.

➢ A defendant convicted of assault family violence and placed on community supervision must pay $100 to a family violence center.

➢ Restitution as a condition of probation must be pronounced at sentencing and cannot be left to the determination of the community supervision officer. Sauceda v. State, 309 S.W. 3d 767 (Tex. App-Dallas 2010); Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014)

➢Confinement (as a condition of supervision):• Not less than 72 continuous hours for

DWI 2nd

• Not less than 5 days for DWI 2nd if committed within 5 years of prior DWI offense

➢ Submit to drug and alcohol evaluation and follow treatment recommendations

➢ Pay for part or all of rehabilitation costs based on the defendant’s ability to pay

➢Attend and successfully complete• DWI education class within 180 days for DWI 1st

• Repeat offender education class for DWI 2nd

➢Driver’s license suspension for DWI 2nd or more – 90 days to 2 years

➢ For DWI 2nd or DWI > 0.15, install ignition interlock device on vehicle owned or driven by defendant and restrict driving vehicle without ignition interlock➢Must install within 30 days of being placed on

supervision and remain on vehicle for at least half of supervision period

➢ The judge may impose any reasonable condition:• That is not duplicative of another condition, and • That is designed to protect or restore the

community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.

➢ The judge must consider how the conditions will impact the defendant’s:• Work, education, and community service schedule

or obligations, and• Ability to meet financial obligations.

➢Commit no new criminal offenses➢Avoid persons or places of disreputable or harmful character

➢Report to supervision officer as directed by the judge or supervision officer

➢Work faithfully at suitable employment➢Remain within a specified place such as within the county of supervision

➢Submit to drug and alcohol testing

➢Submit to drug and alcohol evaluation and follow treatment recommendations

➢Attend counseling for substance abuse

➢Attend alcohol awareness program

➢Attend drug offender education class

➢Submit to a mental health evaluation and follow treatment recommendations

➢Attend a battering intervention and prevention program or counsel with a provider of such program

➢Attend or complete online a responsible pet owner course

➢ Participate in a community service project• Unless defendant is physically or mentally incapable,

participation will cause hardship to defendant or his dependents, or for good cause shown

• Up to 600 hours for Class A misdemeanor burglary of a vehicle

• Up to 200 hours for Class A misdemeanor

• Up to 100 hours for Class B misdemeanor

➢ In lieu of community service, the judge may order a defendant to make a donation to a nonprofit food bank/pantry or charitable organization benefitting veterans.

➢Make payments• Up to $50 to Crime Stoppers

• Up to $50 to state victims’ crime fund

• Victim’s psychological counseling made necessary by offense

• Monthly payments to the supervision office

➢Reimburse a law enforcement agency for drug testing, storage or disposal

➢Reimburse the county for court appointed attorney fees and interpreter fees

➢ The judge shall direct a supervision officer or other person approved by the Dept. of State Health Services to conduct an evaluation to determine the appropriateness of alcohol or drug rehabilitation for the defendant.

➢ The judge must determine that alcohol or drug abuse may have contributed to the commission of the offense OR the case involved a 2nd or subsequent DWI within 5 years of the prior offense.

➢ The evaluation must be made:• After arrest and before conviction if requested by the defendant,• After conviction and before sentencing if the judge assesses

punishment,• After sentencing and before entry of a final judgment if the jury

assesses punishment, or• After community supervision is granted if evaluation is required

as a condition of community supervision.

2017 Legislative

Changes

A judge placing a defendant on community supervision [on or after January 1, 2018], shall inform the defendant in writing and on a form prescribed by the Office of Court Administration of the Texas Judicial System that, after satisfactorily fulfilling the conditions of community supervision and on expiration of the period of community supervision, the judge is authorized to release the defendant from the penalties and disabilities resulting from the offense as provided by Article 42A.701(f).

➢ The judge shall determine the conditions of community supervision after considering the results of a risk and needs assessment conducted with respect to the defendant.

➢ The judge may impose any reasonable condition:• That is not duplicative of another condition, and

• That is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.

Revocation and

Modification

➢ Only the court that granted community supervision or the court to which jurisdiction has been transferred may revoke community supervision.

➢ A motion to revoke must be filed and the warrant or capias issued before the expiration of the community supervision period.

➢ The court may issue a warrant for the defendant's arrest for violating any condition of community supervision at any time during the period of community supervision.

➢ However, the defendant may be arrested with or without a warrant by any supervision officer, police officer, or other officer with power of arrest on the order of the judge. [CCP Art. 42A.751(b)]

➢ A defendant who has been arrested for violating a condition of community supervision may be released on bail or detained until a community supervision revocation hearing is conducted.

➢ The arresting officer must immediately report the arrest and detention to the judge.

➢ Without any unnecessary delay, but not later than 48 hours after the defendant is arrested, the defendant must be brought before the judge who ordered the arrest for violating community supervision or, if the judge is unavailable, before a magistrate of the county in which the defendant was arrested.

➢ The judge or magistrate shall perform all appropriate duties and may exercise all appropriate powers under Article 15.17 for a new criminal offense, except that only the judge who ordered the arrest may authorize the defendant’s release on bail.

➢ If the defendant is not released on bail, on motion by the defendant, the judge who ordered the arrest must conduct a hearing on the alleged violation within 20 days of the date the defendant’s motion is filed.

➢ After a hearing without a jury, the judge may continue, extend, modify or revoke the community supervision.

➢ Written notice of claimed violations

➢ Disclosure to defendant of evidence of each alleged violation

➢ Opportunity to be heard and present witnesses and documentary evidence

➢ Opportunity to confront and cross-examine adverse witnesses

➢ A neutral and detached hearing body

➢ A written statement by the fact-finder of the evidence relied on and reasons for revoking community supervision

➢ The right to counsel

➢ After determining that the defendant violated a condition of community supervision, the judge may:➢ Impose any other conditions the judge

determines are appropriate,

➢ Lengthen the period of community supervision up to 3 years total (or longer for payment of fine, costs or restitution), and

➢ Increase the defendant’s fine.

➢ The judge of the court having jurisdiction of the case may, at any time during the period of community supervision, modify the conditions of community supervision.

➢ The judge may authorize the supervision officer to modify the conditions for the limited purpose of transferring the defendant to different community supervision programs.

➢ Must the defendant consent to the amended conditions in writing or in open court?

➢ If the defendant does not consent, must you appoint counsel, conduct a hearing, and take testimony?

Appellant was not entitled to a hearing concerning the modification of his probation for the trial court "may, at any time, during the period of probation alter or modify the conditions.“ Sanchez v. State, 603 S.W. 2nd 869 (Tex. Crim. App. 1980).

➢ Probation condition was vague and ambiguous (i.e. restitution)

➢ Probation condition was unreasonable

➢ Failure to report- supervision officer made no attempt to contact the defendant at last known residence or place of employment [CCP Art. 42A.756 – due diligence defense]

➢ Failure to pay fines, court costs, restitution was due to indigency [CCP Art. 42A.752(i)]

➢Continue the hearing itself

➢Allow State to make recommendation in return for defendant’s plea of "true“

➢Hear evidence and find: That State did not prove violation or defendant

carried burden of proof on defense (preponderance), OR

One or more allegations "true" and revoke in full or modify sentence

➢If revoked, proceed to find the defendant guilty

➢Assess punishment and sentence, or probate sentence and convert to regular probation

Deborah Earley, Blanco County Attorney