Texas - Code of Criminal Procedure 42.12 Flashcards
How many sections are in 42.12?
24
Explain how “Due Diligence” of probation officer or department impacts revocation?
Sec. 24
Lack of Due Diligence is an AFFIRMATIVE Defense (D must prove me preponderance or evidence)
If violation of failure to report or remain within a specific place
Affirm. Def. that supervising officer (or other warrant officer) failed to contact or attempt to contact D in person at last known address or employment (as reflected in files of department)
What is the longest a Sex Offender can be on probation?
Sec. 22A
20 years (Original 10 and 10 yr. extension)
If CRT finds D “has not sufficiently demonstrated a commitment to avoid future criminal behavior and that the release of the D from supervision would endanger the public” CRT may extend for 10 years
THIS extension can only happen ONCE
What is the longest a D can be on Misd. Probation?
Sec. 21 5 years Original 2 years \+1 year for "showing of good cause" \+2 years if D fails to pay fine, costs, or restitution
What is the deadline for extending probation?
Sec. 21 1 year (first anniversary) of date when supervision expires IF a motion to revoke is filed
What is the maximum number of community service hours a judge can impose?
Sec. 21 Assessed on Modification
Double amount originally authorized if modification of probation
Sec. 16 Originally Assessed
1000 for 1st Deg.
800 for 2nd Deg.
600 for 3rd Deg.
400 for SJF
200 for Class A (or hybrid over 180 days or $4000 fine)
100 for Class B (or hybrid under 180 days or $4000 fine)
Exceptions, also
What if CRT order community service for benefit of “target of defendant”?
Not less than 100 hrs for Misd.
Not less than 300 hrs. for Felony
If probation for OUTDOOR BURNING OF HOUSEHOLD REFUSE IN CERTAIN
RESIDENTIAL AREAS - minimum of 60 hours (trash or recycling related)
Can judge order donation in lieu of community service?
Yes, to food pantry or bank (non-profit)
What is considered a “Court” under 42.12?
Courts of Record - Sec 2
What is the minimum term of community supervision for a felony?
Same as the minimum term of confinement
What is the maximum term of community supervision for felonies (notwithstanding extensions)?
10 years
Other than for 3rd Deg.: 1. Property Crimes (excluding Solicitation of a Minor); and 2. Controlled Substance
What is the maximum term of community supervision for misdemeanors (notwithstanding extensions)?
2 years
What is the community supervision terms for sex crimes against children (notwithstanding extensions)?
Min. 5 years and Max. 10
What kind of sentence (not talking about 3g) prohibits judge from ordering community supervision?
Sentence exceeding 10 years
State Jail confinement sentence PC 12.35
What is the minimum term of community supervision for burglary of a vehicle (Class A Misd.)?
If minimum confinement is 6 months, then probation must be min. 1 year
How does deadly weapon impact ability to get community supervision?
Judge cannot grant community supervision if there is an affirmative finding of a “deadly weapon” per PC 1.07
Also, judge must enter finding as to whether weapon was a “firearm”
If “Firearm” + 2nd Deg. Felony (or higher) = 60 to 120 days in TDCJ as a condition
What length of sentence prohibits community supervision from jury?
sentence exceeding 10 years
What must D do to be able to get probation from jury?
File SWORN motion that not been convicted of felony
AND jury must find it to be true.
What controlled substance offense prohibits probation from the jury?
Possession of Controlled Substance in a School Drug Free Zone
IF previous conviction under same provision
What offenses is probation prohibited?
If victim is younger than 14: 1. Indecency - Sexual Contact 2. Agg. Sex. Assault 3. Sex. Assault If victim younger than 14, and committed with intent to sexually abuse: 4. Agg. Kidnapping 5. Sex performance of child; 6. Compelling prostitution 7. Trafficking of persons 8. Murder
What must the judge find to grand deferred adjudication?
Judge’s opinion that “the best interest of society and the defendant will be served”
What offenses that are not otherwise probation eligible may a judge placed a D on DFAJ?
- Indecency - regardless of age
- Sexual Assault - regardless of age
- Agg. Sex. Assault - regardless of age
ONLY if judge makes finding in open court that placing D on community supervision is in the best interest of the victim
What must Judge do when placing D on DFAJ?
Warn orally or in writing - oral warning must be recorded - failure to warn is not grounds for reversal unless D shows he was harmed by failure
Can you get days as a condition when you’re on DFAJ?
Yes.
When does D have to file motion to proceed to adjudication for mandatory adjudication by judge?
Within 30 days after plea
Can the judge proceed to adjudication based on failed polygraph?
No, not if polygraph is the ONLY evidence supporting the alleged violation - uncorroborated
What if crt proceeds to adjudication on a SJF that is a “mandatory probation” offense?
Judge can impose sentence (don’t get two bites at apple)
When may the judge discharge DFAJ early?
If it’s not a reportable sex offense;
any time if judge makes finding that “best interest of society and defendant” will be served
Is a DFAJ admissible at punishment phase of another trial?
Yes.
What kind of licensing can DFAJ be considered for under 42.12?
- A child care facility under Chapter 42 of Human Resources Code;
- Sex Offender Counselor
What offenses can Judge not grant DFAJ?
- Intoxication Offenses;
- School Drug Free Zone - with prior School Drug Free Zone
- If D already has already has some kind of proabtion for one of these offenses, you can’t get a second:
a. Indecency - regardless of age
b. Sexual Assault - regardless of age
c. Agg. Sex. Assault - regardless of age - Continuous Sexual Abuse of Child
- Super Agg. Sex Assault
- Murder - unless judge finds “D didn’t cause death, did not intend to kill or another, and did not anticipate human life would be taken”
What must a judge do if he grants DFAJ for unlawful restraint or kidnapping?
If judge determines age of victim is under 17, must make finding and file statement of finding
What must judge do if he grants DFAJ for a reportable conviction and victim is younger than 14?
If just determines age of victim is under 17, must make finding and file statement of finding
Is a clerk’s record in a DFAJ confidential?
No.
What must a judge do if grants DFAJ for Indecency or Sexual Assault?
Make and file statement of finding if judge determines:
- D was not more than 4 years older than vic. and the vic. was at least 15;
- the charge of plea is based solely on age of vic. at time of offense.
What retains court’s jurisdiction after DFAJ expires?
If before expiration:
- State files motion to proceed; and
- A capias is issued
What must a judge find on motion of State if victim of severe form of trafficking or is a U Visa candidate?
Regardless of whether described conduct is conduct of the prosecution, the judge must make the finding regarding the victim.
What are the requirements of a finding for trafficking or U Visa candidate?
- Identifying information;
- No location information;
- Confidential (unless release by vic. or vic’s parents)
How long does a Court retain felony jurisdiction (not SJF)?
180 days after execution of sentence actually begins
What are requirements of “Shock Probation”?
- Motion (Judge’s, States’, D’s) within 180 days of sentence execution;
- D otherwise eligible for probation from judge;
- Judge finds “defendant would not benefit from further imprisonment”
- D never been to pen (even on Shock)
- Judge can deny without hearing, but must have hearing to grant with D present
How long does Court retain jurisdiction on Misd. case?
180 days
Same requirements of Felony “Shock” but no concern about prior sentence
What about Boot Camp?
Repealed. Gone.
Is a presentence investigation report mandatory in felony sentencing?
“Shall,” unless:
- Jury assess punishment;
- Capital murder guilty plea;
- D not eligible for probation;
- Plea bargain, and judge intends to follow bargain
Is presentence investigation report mandatory in misdemeanor sentencing?
“Shall” unless:
- D request one not be made and judge agrees; or
- Judge finds there is sufficient evidence in record to permit meaningful exercise of sentencing discretion, and judge explains that finding in the record.
What must be contained in a PSI?
- Circumstances of he offense;
- Amount of restitution;
- Criminal and Social History;
- Any other information requested by judge
- Information about D military service - if combat, must contain PTSD info or brain trauma info
Must the PSI include a recommendation?
No, but it must include a supervision plan
When can a judge or party see a report?
- D pleas;
- D found guilty;
- D consents in writing
How long before sentencing is a D and attorney entitled to see PSI?
48 hours
Can D object to PSI?
Yes, Judge must let D or attorney comment on report
BUT Judge has discretion to allow testimony
When must a judge order a Substance Abuse Evaluation?
- DWI within 5 years of other DWI
- Intox. Assault within 5 years of current Intox. Assault;
- Intox. Mans. withing 5 years of current Intox. Mans.
- Judge determines alcohol or drug abuse contributed to commission of the offense
When is Substance Abuse Evaluation supposed to be done?
- If D requests, after arrest and before conviction;
- If Judge assess punishment, after conviction before punishment;
- After community supervision starts if required under Sec. 13
When must a PSI include psych eval?
“Shall” if just observes or party suggests mental impairment
Must have IQ test and “adaptive behavior” score
How can Judge get information for PSI?
Either order or subpoena
Who may PSI be released to?
Confidential, unless:
- Judge and parties;
- Correction agencies
- As directed by judge for supervision
What if PSI isn’t required, does D get evaluated?
Yes. judge may direct POSTsentence report
Must be delivered to Clerk by 30 days from sentence
To what offenses do the special “Sex Offender” probation conditions apply to?
- Agg. Kidnapping w/ intent of sexual abuse;
- Indecent Exposure;
- Indecency;
- Sex. Assault;
- Agg. Sex Assault;
- Prohibited Sexual Conduct;
- Burg. if intent to commit sex offense;
- Child Porn.
When does sex offender evaluation occur?
After conviction, before “final entry of judgment”
Mandatory to be reported to judge
What happens if D wants his sentence suspended or modified in a felony?
Must be the judge that actually imposed - if disabled, dead, vacant office
Must be forwarded to Presiding Judge of Administrative District
Can a court transfer jurisdiction to an out of state court for probation?
Yes, and the new court becomes just like the old court.
Which court can issue a warrant for arrest for a violation of probation?
Any court with geographic jurisdiction where violation occurs.
BUT court with jurisdiction over the case must take action on revocation or adjudication
Can judge delegate any authority to change probation?
Yes, magistrate or supervision officer may transfer D to different programs or sanctions within the community supervision continuum
What must happen if magistrate or supervision officer modifies probation?
Deliver a copy of modification to D
File copy of modification
If D agrees in writing, it’s enforceable
If D does not agree, it goes back to judge with jurisdiction
How much can D be ordered to pay to the “Victim’s Crime Fund”?
$50 misd
$100 felony
What fees can D be ordered to pay unrelated to specific conduct?
Crime Victim Fund
Crime Stoppers $50
$50 to child advocacy
Does the D obligation to pay fine, court costs, and restitution survive termination of probation?
Fine and Court Cost - yes
Restitution - no
Is the court required to inquire into educational skill level?
Yes, and D has to have 6th grade skill level. If D doesn’t and is capable, must attain as a condition of probation
Can judge make orders concerning mental health?
Yes, MHMR services may be required
What do Ds that are required to register have to do on probation?
- Register
2. Give DNA
What additional payment may a family violence D have to pay?
$100 to family violence fund
DNA required?
If felony
What is required if criminal mischief type charge (including arson)?
15 hours of community service if value $50-$500
30 hours of community service if value $500 or more
How many days as a condition may a judge order?
30 misd.
180 felony
24 months in facility for Drug Court
How many days as a condition are required for DWI?
72 hours if DWI 2nd 5 days is DWI 2nd and within 5 yrs of DWI 10 days for DWI 3rd 30 days for Intox Assault 120 days for Intox Manslaughter
DWI First jury determination regarding driver’s license?
They can recommend no suspension
What classes are required fro DWI probation?
Before 181 days must take DWI ed.
Is deep lunch device condition restricted by time?
Yes. If based on prior, prior must’ve been within 10 years
License suspension for DWI probation?
90 - 365 days if DWI 1st
180 - 2 years for DWI 2nd or 3rd Deg
If second within 5 years, 1 years - 2 years
If judge doesn’t do it, DPS does for 365
If revoked, judge SHALL suspend if not suspended before
If D younger than 21 - 90 days suspension & deep lung device
What special condition “shall” a judge impose for supervision for crime of bias or prejudice?
Felony - up to 1 year in TDCJ
Misd - up to 90 days
Cannot get probation for second finding of bias or prejudice
Cannot get probation for bias or prejudice murder
What is a “Child Safety Zone” for Sex Offenders Against Children on probation?
No programs with people younger than 17
1000 feet from “premises where children commonly gather”
For what reason may a D request a judge to modify the “Child Safety Zone”?
- Interferes with ability of D to attend school or hold a job and consequently constitutes an undue hardship for the D;
- Broader than necessary to protect the public, given the nature and circumstances of the offense.
When can a probation officer ALLOW a D to enter a “Child Safety Zone”?
- D been on probation for 2 years;
- Purpose of program to reunite D’s family;
- D presents written plan: where, who, and how to cope;
- Treatment provider AND probation officer agree; and
- Treatment provider AND probation officer agree on a chaperon.
What are the exceptions to the “Child Safety Zone”?
Going to or from:
- probation office;
- program or activity as condition of probation;
- residential facility required as condition; and
- private residence required as a condition.
When can a judge impose a “Child Safety Zone” other than sex offenses?
Any 3g(a)(1) offense OR a deadly weapon finding under 3g(a)(2) There is no specific distance in statute
Who can a judge require E-monitor as a condition?
Upon felony CONVICTION documented gang member with 2 or more felony convictions/deferrals
Who can judge restrict operation of motor vehicle?
Organized Crime - restrict hours and locations
Who can judge restrict from internet access?
Sex crime against a child;
Used internet to commit the offense (or engaged in registerable conduct); or
Is a Level 3 under 62.007
What is a potential condition for “sexting”?
Take a “Programs on Dangers of Students Sharing Visual Material Depicting Minor Engaged in Sexual Conduct” glass - parents or kid must pay if they can
What are conditions of probation if victim is a child younger than 14?
No direct communication or go near residence, school, or other location
Court MAY grant supervised access
The condition conflicting with existing court order - conditions control for a maximum of 90 days
Can the judge order SAFP for Indecency, Sex Assault, Agg Sex Assault?
Yes, if judge makes finding that:
- Drugs or alcohol contributed to offense;
- D is suitable candidate for treatment
Is re-entry program after SAFP discretionary?
No, code says judge SHALL require:
1. Continuum of care;
2. Pay fee for residential aftercare.
NOTE: Judge can only require up to 25% of NET income for aftercare fee
What convictions have mandatory probation?
State Jail Amount of Controlled Substance, or Fraud Script for Sched. II or III.
PG 1-A - no more than 5 abuse units
PG 2 - no more than 1 pound
Marihuana - no more than 1 pound
What is the new way a judge can impose a State Jail Sentence?
Hybrid: sentence in part confinement and in part community supervision
What if jury doesn’t recommend probation on a mandatory probation State Jail Felony?
Judge has to impose WHOLE confinement
What is the possible term D can be placed on probation for SJF?
minimum of 2 years
maximum of 5 years
Extension to 10 years
What are the new provisions of SJF sentencing with regard to judge’s discretion in judge sentencing?
- MUST have PSI
2. MUST follow recommendation of PSI
What conditions may a judge impose on SJF?
ANY that could be imposed on other probation, ANY!
What conditions SHALL a judge impose of community supervision in mandatory SJF probation?
Substance Abuse Treatment UNLESS judge makes affirmative finding otherwise
When may a judge impose State Jail confinement as a CONDITION of probation?
Any SJF for 90 to 180 days, OR
90 days to 1 year
Manufacture or Delivery of Substance in Penalty Group 1 (less than a gram)
Offense: Manufacture or Delivery of Substance in Penalty Group 2 or 2-A (less than a gram)
Delivery of Marihuana (more than 1 oz. and less than 5lbs)
Can a judge modify probation and order Stat Jail time?
Yes, 90 to 180 days
Is there “Shock Probation” for State Jail Felonies?
Yes, court retains jurisdiction for 75 days.
Is county time served credited to D sentence on State Jail?
MAYBE, a judge MAY give credit 42.12(15)(h)(2)(A)
Do you get credit on revocation sentence for State Jail time served as a condition or as a “Shock”?
Yes.
Do you get credit for SAFP?
Yes, if you successfully complete the program.
What can a D get “diligent participation credit” for?
Educational, vocational, or treatment program, or active work program
TDCJ-SJ must submit report before 30 days from completing of 80% of SJ sentence
D can get up to 20% of credit
What probation requirements apply to enhanced disorderly or public intoxication?
If sentence suspended, misdemeanor probation
+ diagnosis and psych testing
What supervision fees may be imposed?
$25 to $60 ($5 more for sex offenses)
Unless judge finds financial hardship
Duty to pay extinguishes on termination of probation
When may the judge reduce or terminate?
After two years or 1/3 term, whichever is less
Judge shall review at 1/2 (if D current on all $)
NOT for intoxication offenses or reportable convictions
Can D earn “time credit” towards community supervision?
Yes, in SJF or 3rd Deg. other than: Intox. Offense, Family Violence, Reportable Conviction, kidnapping, arson, current on $, and paid all restitution: 90 days for diploma or GED; 120 days for Associate Deg; 15 days for payment of court costs; 30 days for fines; 30 days attorney's fees; 60 days restitution. 90 days alcohol or substance abuse; 60 days vocational training; 30 days parenting class; 30 days if ACC; 30 days if life skills.
If judge issues probation revocation warrant or docket entry to apprehend, when does the person have to be presented?
48 hours
How quickly must a probation revocation hearing occur is D is confined?
20 days
When can State amend motion to revoke?
7 days before hearing (unless good cause)
In no event can they amend after evidence is given
Can the court revoke based on a polygraph?
No, not if uncorroborated
What must State show to revoke on fees or costs?
Preponderance of Evidence that D was able to pay and didn’t
Does D have a right to revocation hearing?
Yes.
