Appellees Brief — Danny Vincent v. State of Texas
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SEP -2 1980
NO. 79-5962
RODAK, JR. CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
DANNY VINCENT,
Appellant
V.
THE STATE OF TEXAS,
Appellee
On Appeal ¥rom The
Texas Court of Criminal Appeals
BRIEF FOR APPELLEE
MARK WHITE DAWN BRUNER
r Attorney General of Texas Assistant Attorney General
JOHN W. FAINTER, JR. DOUGLAS M. BECKER
First Assistant Assistant Attorney General
W. BARTON BOLING P.O. Box 12548, Capitol Station
Assistant Attorney General Austin, Texas 78711
Chief, Enforcement Division (512) 475-3281
Attorneys for Appellee
as
QUESTIONS PRESENTED
1.(a) Whether Appellant Vincent was deprived of
due process of law when his probation was revoked at a
full and fair hearing that was not preceded by a
preliminary hearing?
(b) If so, whether this Court should hold the Texas
felony probation statute unconstitutional for its failure
to establish an arrested probationer’s right to a
preliminary hearing; or, alternatively, for its failure to
require that arrested probationers must be informed of
their statutory right to a revocation hearing within
twenty days after one is requested?
2.(a) Whether any error in wrongfully depriving
Appellant Vincent of a preliminary hearing was
rendered harmless by his subsequent full and fair
revocation hearing that is presently unchallenged on
any ground?
(b) If not, whether the Court’s holding should apply
retroactively?
3. Whether this appeal should be dismissed for
Appellant Vincent’s failure to file notice of appeal “with
the clerk of the court possessed of the record” as
required by former Sup. Ct. R. 11(1)?
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TABLE OF CONTENTS
QUESTIONS PRESENTED .......cssccccscsscscessorsevsossoeees
ey OR Be iy yo) yy!) rT
ERR WIE BENANERS MEUERI TT sesiscnicrssvconsecesnssesonssvenessenevensace
PRP RU ER IEE iiihinsinncticatomaiaccsnreionsicaclbiestberserésoseornances
CONSTITUTIONAL PROVISIONS AND
Eee Oe RIO TEED or vansscrsvsvsssnsvincsnsisesneitensivene
SUMMARY OF ARGUMENT ..........ccscscsssesssceseeees
ARGUMENT:
I. TEXAS PROBATION REVOCATION
PRO-
CEDURES ARE CONSTITUTIONAL AND DENIAL
OF A PRELIMINARY HEARING DID NOT DE-
PRIVE APPELLANT VINCENT OF DUE PROCESS
ROUT MRT setbaihicuchcccaetictlisidinusscsuscinasdendtdssasakmensidiswindoaties
A. Texas Probation Revocation Procedures Ex-
ceed the Due Process Requirements of the Four-
I PIE aig cota cinadinsinstvebsabdceuseasns
1. The judicial and legislative development
of the due process and statutory rights of
probationers in Texas has always paralleled
or exceeded the development of probationers’
I Te IID citiscsentncscidainsibciaedaondnideamnanesee
2. Texas has responded appropriately in
fashioning its own scheme of due process for
SIITIINIIIL. dnsicelsiensstinccedsncancenibiamliainanigine wuskuninks
3. In view of the fact that Vincent received a
judicial determination of probable cause
before he was arrested and was released on
bond prior to his full and fair revocation
hearing,he was not entitled to a preliminary
iia caci aa lac tatis ethan dlsinsacibbiiliind tulntapigiasbeaiiedle
-jil-
B. If the Texas Probation Revocation Statute
is Unconstitutional, it can only be Unconstitutional
to the Extent that it does not Provide for Notice to
be given to Arrested Probationers of their Right toa
PORE TEORE IIT curs sicesssrcssnssccssnesobennseniensenisemanpenmnenpenanionens 21
II. ANY ERROR IN NOT ACCORDING VINCENT
OR ANY OTHER TEXAS PROBATIONER A PRE-
LIMINARY HEARING IS, IN LIGHT OF THE
TEXAS REQUIREMENTS OF A PRE-ARREST
DETERMINATION OF PROBABLE CAUSE ANDA
FULL AND FAIR REVOCATION HEARING,
HARMLESS BEYOND A REASONABLE DOUBT ...... 22
A. The Texas Courts’ Refusal to Accord Vincent
a Preliminary Hearing has no Bearing on his
PORE TROUT ORION cveviiccccicsstestercecmresteenemaaianalnain 22
B. Any Holding Adverse to Texas should be
Applied Proapectively OR1y ...cccccsccsesccsscscoisssecsasoseeneseseenes 27
III. VINCENT’S APPEAL SHOULD BE DIS-
MISSED BECAUSE HE FAILED TO COMPLY
WITH FORMER SUP.CT.R. 11(1), 28 U.S.C. (1970) ...... 30
A. Vincent has not Timely Filed a Notice of
Appeal to the Supreme Court of the United States
with the Texas Court of Criminal Appeals, the
“Court Possessed of the Record.” ......ccccccssrscssssssvosescesens 30
B. Both the Policies underlying former Sup.Ct.R.
11(1), 28 U.S.C. (1970), and the Language of present
Sup.Ct.R. 11(1), 28 U.S.C. (1980), Evidence an
Intent that Notice of Appeal be Filed with the
Deciding State Court of Last Resort ............cceeceeseeeeeees 34
CORNCE SIGNI nice te ee 35
-iv-
TABLE OF AUTHORITIES
Case Page
Ainsworth, Ex parte, 532 S.W.2d 640
|, | 16
Baker v. McCollan, 433 U.S. 137 (1979) v.cccccccccccscessscesesceceeseeees 25
Barker v. Wingo, 407 U.S. 514 (1972) c...cccccccccccssssccssscessseeeseseeees 26
Bivens v. Six Unknown Named Agents,
SE EPEMINEED cccesesscrsonrveccoovecssotvecsssveseconsesvecvesesccveseceocccsoses 25
Britt v. McKenney, 529 F.2d 44 (1st Cir.)
cert. denied, 429 U.S. 854 (1976) ......sscscsscscescssessesesssreseesees 24
Burkett v. State, 485 S.W.2d 578
SS 17
Burns v. United States, 287 U.S. 216 (1982) vccccccecccccceesseceeeeees 11
Carney v. State, 573 S.W.2d 24 (Tex.Crim.App. 1978) ........ 18,26
Charger Investments, Inc. v. Corbett, 429 U.S. 887 (1976) ......... 33
Chilembwe v. Wyrick, 574 F.2d 985 (8th Cir. 1978) .........0 21
Collins v. Turner, 599 F.2d 657 (5th Cir. 1979) ......ccccccscceseseeees 24
Curtis v. State, 370 N.E.2d 385 (Ind.Ct.App. 1977) .......cccsceeees 20
Davis v. State, 576 S.W.2d 378 (Tex.Crim.App. 1978) ............. 26
Desist v. United States, 394 U.S. 244 (1969) once 27
Dowdy v. State, 534 S.W.2d 336 (1976) w..cccsessseseseeeeseeseeeeees 18
Escoe v. Zerbst, 295 U.S. 490 (1935) .........cccccsccsssssssssessssssecseeesees 11
Estelle v. Gamble, 429 U.S. 97 (1976) .......cccccccssssesssssssressseeseseeeees 25
Fariss v. Tipps, 463 S.W.2d 176 (Tex. 1971) w..ccccseseeseeeeeee 16,26
Fay v. Commonwealth, 399 N.E.2d 11
I I cs ns cs cncdnnncsdnseduncntvedoescosoevonneceveveenesvees 20
-\V-
Frisbie v. Collins, 342 U.S. 519 (1952) ......ssssssersssssssssssesseseees 24
Gabriel v. United States, 429 U.S. 887 (1976) ......ccccesccessreeeeeees 33
Gagnon v. Scarpelli, 411 U.S.778 (1978) .......cscccssseessreeeees passim
Gardner v. Collier, 274 S0.2d 662 (Miss. 1973) ......csessessereeeees 21
Gerstein v. Pugh, 420 U.S. 108 (1975) ....ceccsseseeeeecees 22,24,25,27
Gideon v. Wainwright, 372 U.S. 335 (1968) ....cccccssessseseeeerees 11
Gordon v. State, 575 S.W.2d 529 (Tex.Crim.App. 1978) ........... 17
Graham »v. State, 502 S.W.2d 809 (Tex.Crim.App. i 17
Grant v. State, 505 S.W.2d 259 (Tex.Crim.App. 1974) ............. 14
Hamilton v. Alabama, 368 U.S. 52 (1961) ........cccccccsssssceessereeees 11
Imbler v. Pachtman, 424 U.S. 409 (1976) ..........ccccccssssssscssssssseeees 26
Inmates’ Councilmatic Voice v. Rogers, 541 F.2d 633
OE re TUE, seiciitoricateeniaelinienesdainenninnertinmtiernniinns 21
Jones v. Johnston, 534 F.2d 353 (D.C. Cir. 1976) ....ccscseseereerees 21
PD, FOROS, EAD TEE, GI Ce treeenenscctavinnivessivensessvesensevintenes 24
Linkletter v. Walker, 381 U.S. 618 (1965) ............ccccccssssssessessseees 27
Lovorn v. State, 586 S.W.2d 356 (Tex.Crim.App. 1976) ............ 18
Masters v. State, 545 S.W.2d 180 (Tex.Crim.App. 1977) .......... 17
Meidinger, Petition of, 589 P.2d 1185 (Mont. 1975) .........cccccceeee 20
Mempa v. Rhay, 389 U.S. 128 (1967) .........cscccccsseessrsssseees passim
Moore v. Michigan, 355 U.S. 155 (1957) ..........ccccccccscsssccessssseeees 11
Morrissey v. Brewer, 408 U.S. 471 (1972) ............ SAK SAE da passim
Paulos v. State, 248 S.W.2d 928 (Tex.Crim.App. 1952) ............ 32
Pearson v. State, 241 N.W.2d 490 (Minn. 1976) .......c.ccccccceseeeees 20
-Vi-
People v. Rial, 249 N.W.2d 114 (Mich. 1976) ..........ccccesseesseeeees 21
Procunier v. Navarette, 434 U.S. 555 (1978) ...ccccsccssessesesseeseesees 26
Pruitt v. Hutto, 542 F.2d 458 (8th Cir. 1976) .........ccceeeseeeeeeeeees 24
Richardson v. Blumenthal, 435 U.S. 939 (1978) ...cccccsceeeeeeeees 33
Roberts v. United States, 320 U.S. 264 (1948) oo... cece eeeeeeeees 11
Rose v. Mitchell, 448 U.S. 545 (1979) ......csssccrsccsscsssssscrsrsessereees 24
Sanders, Ex parte, 588 S.W.2d 383 (Tex.Crim.App. 1979) ...... 17
Sappington v. State, 508 S.W.2d 840 (Tex.Crim.App. 1974) .... 18
Scamardo v, State, 517 S.W.2d 293 (Tex.Crim.App. 1974) ...... 23
Shivers, Ex parte, 501 S.W.2d 898
A BAM, UTED cceccasteciisdetasenitorsaascvuesncerevscbscbesnneanns 14,17,29
State v. Fry, 550 P.2d 697 (Wash.Ct.App. 1976) ......ccscceseeseeees 20
State v. Lohnes, 266 N.W.2d 109 (S.D. 1978) ....ccccccsscsessesseseeeeeees 21
Stidham v. Wyrick, 567 F.2d 836 (8th Cir. 1977) ....cccceeeeeeeeeeee 21
Stovall v. Denno, 388 U.S. 298 (1967) .....ssscccsccessrcsrcesssssersseeees 27
Taggart v. New York, 392 U.S. 667 (1967) ......ccssscccssssreessreeeees 33
Tamez v. State, 584 S.W.2d 686 (Tex.Crim.App. 1976) ........ 18,26
Townsend v. Burke, 334 U.S. 736 (1948) .......ccccccccssssssrrreseeseeees 11
Trillo, Ex parte, 540 S.W.2d 728 (Tex.Crim.App. 1976) ..... 17,26
United States, Ex parte, 242 U.S. 27 (1916) ........csccsssseeeeeees 10,11
United States v. Companion, 545 F.2d 308 (2d Cir. 1976) ... 24,25
United States v. Crews, ___. U.S. —_. ,
I a cicanemnenan gmeimeunpeeliea 24
United States v. Lira, 515 F.2d 68 (2d Cir.),
COPE, OIG, GS UG. BAT CITED vaccsssscseccesscoscsescsvccnssvcesescrocscss 24
-vii-
United States v. Marzano, 537 F.2d 257 (7th Cir.),
cert. denied, 429 U.S. 1088 (1976) .....ccccccccssssseerrreeseeeeeeeeeeees 24
United States v. Miller, 532 F.2d 1335 (10th Cir.)
cert. denied, 429 U.S. 889 (1976) ....ccscccseseseeeseeseeseesesseseeseees 24
United States v. Millican, 600 F.2d 273
(5th Cir. 1979 ), cert. denied, __. U.S. —_.,
BOO B.Cb. IBTE (IGG) sccoccrscccccsssccsrsesccesssevccsscevsescssenesensesesesowssncse 24
United States v. Postal, 589 F.2d 862 (5th Cir.),
cert. dented, 444 U.S. 882 (1979) ......ccsscccccsrcssssssrsssesesseereeeeeeees 24
United States v. Sciuto, 581 F.2d 842 (7th Cir. 1976) ......ccceeeee 20
United States v. Sutton, 607 F.2d 220 (8th Cir. 1979) .....cceeee 20
United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974) .......... 24
United States v. Tucker, 524 F.2d 77 (5th Cir. 1975),
cert. denied, 424 U.S. 966 (1976) .......cccccsscsssresssseccssssssseesseseees 21
United States ex rel. Hahn v. Revis, 520 F.2d 632
CFR CI. BIT GD. scicesessicsacsecccninsesviocsensnnebicnscecenvonmenstonesiniencmnneesnitiin 25
Valdez v. State, 508 S.W.2d 842 (Tex.Crim.App. 1973) ......00+ 16
Vincent v. State, No. 60,564 (Tex.Crim.App.,
Bet. 19, 1DTB) .erreroreccrscscrcecsvcrssevecececescnrsceccssosoosesconessosvesseosoasoes 1,7
Whisenant v. State, 557 S.W.2d 102
Ce TI A. BTA). cscccecesssorsnsconcecssoctosnonsoesnnssnces 14,17,18,25,29
Wolff v. McDonnell, 418 U.S. 539 (1974) ...ccccccsceeereerseeeeeenes 27,28
Constitutions, Statutes, and Rules
U.S. Const. amend. VI ....cccccccccocsccccsccecseccecceccsessecsescseseescessssssesoess 16
U.S. Const. amend. XIV ....ccccoccccccssorcosessecsoccccsorsececeereeseesssecssossrereee 2
Act of March 4, 1925, ch. 521, 43 Stat. 1259-61... cceeeneees 11
18 U.S.C. SIZBH DZ) .cccsccccrscscoresecersecessessoccesescosescessssesscsssoevecssssereseouss 2
18 U.S.C. $8658 ......crccccccrccccrrcscsscsersoveccoosssecsensesceesesseessessessosecs 11,16
Es MITTEE sipnituincusutsecsenicentnstiabetnintinntintienneneniestiiacnncenitainesionieeanae’ 2
ee TUT. thiesinsseiniisciinincsenscduniinapiersteeciniiiabasinbtisovennessabeiendihion 25
Sup. Ct. R. 11(1), 28 U.S.C. (1970) .........cescsceeeeee 2,3,9, 10,30,31,34
Sa es: Se I SU RPC GRUIED sevenernesnnresnssesnsstionsoveneonenspanenia 34
I I sche lleebaneiiniisesinnmeneauisieniions 16
Se RAE AA, DURE. BOM, OEE. BED cccscssacivveseszensscesssocevesinscensiis 16
Tex. Code Crim. Proc. Ann. art. 14.01 ............sccccscsssssseesscsevsee 16
Tex. Code Crim. Proc. Ann. art. 26.04(b) .........cscsccsssessesseeersees 2
BOR. COGS CHEM. PHOC. ARM. BFE ADOD ...cccccrcssscccsssecsescecsenscoresesese 18
Tex. Code Crim. Proc. Ann. art. 40.09, sec. 1 ....c.cccsseseeeeeees 2, 32
Tex. Code Crim. Proc. Ann. art. 40.09, sec. 2 .uccicccscssescsseseeess 32
Tex. Code Crim. Proc. Ann. art. 40.09, sec. 9 ........ccccsscsseeseeeeers 32
Tex. Code Crim. Proc. Ann. art. 40.09, sec. 10 ........cccesseseeseeees 32
Tex. Code Crim. Proc. Ann. art. 40.09, sec. 18 ...ccceceeeseeeeseees 33
Tex. Code Crim. Proc. Ann. art. 40.09, sec. 15 ....cceccsceseeseeeeees 33
Tex. Code Crim. Proc. Ann. art. 42.12 ......ccsssessssscsessrcsesescesosee 2,21
Tex. Code Crim. Proc. Ann. art. 42.12, sec. 3(b) wo... eeeeeeeeeeeeee 2
Tex. Code Crim. Proc. Ann. art. 42.12, SC. 5 w..cecscsescessereeeeees 17
Tex. Code Crim. Proc. Ann. art. 42.12, sec. 8 ............ 2,7,16,26,30
Texas Penal Code arts. 776-781 (1913) occ cccccscsecsseseeeereeeseneees 13
BOM Bee. CAV. BORE, Amt. Orb, GRTBS ccccscssissecenscccscesssesesccssoseees 25
Rule 11, Texas Court of Criminal Appeals, foll.
Tex. Code Crim. Proc. Ann. art. 44.38 ..........ccccccssssscossssssccssees 32
Rule 12, Texas Court of Criminal Appeals, foll.
Tex. Code Crim. Proc. Ann. art. 44.33 ........ccccceees ei biniitpieiae 32
-1|X-
Other Authorities
ABA Standards Relating to Probation (Feb. 1079 Draft) ....... 18
Arnold, A Survey of Recent Law Concerning Revocation
of Probation in Texas, 52 S. Tex. L. J. 92 (1974) ou... eeecsseeeees 14
4 W. Blackstone, Commentaries 396 ..........ccscsssssesssseseeseesereeeees 10
A. Campbell, Law of Sentencing (1978) ........cccescssssrseeeeeeeens 11
Cohen, Sentencing, Probation and the Rehabilitation
Ideal: The View From Mempa v. Rhay,
Be TA: Bea Bes BR tees tasesensnnsstssnesinnnnsnveessasepenstosserivisnsvenses 10
Comment, 11 Hous. L. Rev. S06 (1974) ......ccccscscosscsccccesesseescecsees 11
Be NN Sc BNO RU 0 PUIUIED stdticcescienensdecisssessncrepnetnansisanseetecestnten 11
Morrisson, Interpretive Commentary, foll.
Ten. Cote Comm. Pree, AMR, GPE. GED cccicssssorscosensessscssosvecssees 13
Pee, A, Fs Cs Bi: Ge CRE ED cxceescdnccpescecivscevscesevescvaheccevesss 26
Dee, BT, TOU Ba BR. TE CRC ve censvesccsescessencseosecorvccessnnes 10
Onion, Special Commentary, foll. Tex. Code Crim. Proc.
A Le sckcteniisgsntttcbidcininvinnvessmensicsthaanscnimniineiuntes 13
S. Rubin, The Law of Criminal Corrections (1963) .................. 11
R. Stern & E. Gressman, Supreme Court Practice
ic TIE snsadclacsctbabsnispcicciecphgncencnintinsbiasaiiunianetesuwcenpetnenes 33
Texas Judicial Council, 51st Annual Report (1979) ................ 14
U.S. Dept. of Justice, State and Local Probation
and Parole Systems (FED., 1978) ...cccccccscccrccccsssoscvcosssseccoveeseres 14
NO. 79-5962
IN THE ©
SUPREME COURT QF THE UNITED STATES
OCTOBER TERM, 1980
DANNY VINCENT,
Appellant
V.
THE STATE OF TEXAS,
Appellee
On Appeal From The
Texas Court of Criminal Appeals
BRIEF FOR APPELLEE
TO THE HONORABLE JUSTICES OF THE
SUPREME COURT:
NOW COMES The State of Texas, Appellee herein,
and in response to the Brief of Appellant Danny
Vincent, would show the Court the following:
THE OPINION BELOW
The unpublished per curiam opinion of the Texas
Court of Criminal Appeals is Vincent v. State, No. 60,564
(Tex.Crim.App., Sept. 19, 1979), and is set forth at
.%
A.38.! See Table, 586 S.W.2d 880.
JURISDICTION
Appellant Vincent seeks to invoke jurisdiction under
18 U.S.C. §1253(2). (Brief for Appellant at 2.). Under 28
U.S.C. §1257(2), jurisdiction would be proper to review
the constitutionally based judgment of the Texas Court
of Criminal Appeals, except that Vincent has failed to
comply with former Sup. Ct. R. 11(1), 28 U.S.C. (1970).
That rule requires that notice of appeal must be filed
with the court possessed of the record within ninety days
after final judgment. Vincent has never complied with
this requirement because he has never filed notice of
appeal with the Texas Court of Criminal Appeals -- the
court “possessed of the record” -- but only with the state
trial court. (See the discussion in the Argument, Part III
below). Therefore, the Court should not exercise
jurisdiction over this cause.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Petitioner cites and sets forth a portion of the
Fourteenth Amendment to the United States
Constitution, as well as Tex. Code Crim. Proc. Ann. arts.
26.04(b), 40.09, sec. 1, and:42.12, secs. 3(b), 8(a). For the
convenience of the Court, the entire Texas felony
probation statute, Tex. Code Crim. Proc. Ann. art.
42.12, secs. 1-i1, is set forth in the supplement to this
brief. :
1A ppellee will refer to the separately bound appendix as “A”. The
record on appeal is composed of a transcript, consisting of all
pleadings, motions, and orders, and a statement of facts, which is
the record of the actual revocation of probation hearing in question-
and-answer form. The former will be referred to as “Tr.”; the latter,
as “R.” Where an item appears in both the appendix and the
transcript, only the former citation is provides.
%
Also involved is former Sup. Ct. R. 11(1), 28 U.S.C.
(1970):
An appeal to review the judgment of a state
court of last resort in a criminal case shall be
deemed in time when notice of appeal
prescribed by Rule 10 is filed with the clerk of
the court possessed of the record within ninety
days after the entry of such judgment and the
case is docketed within the time provided in
Rule 13.
STATEMENT OF THE CASE
On May 23, 1977, in the 84th Judicial District Court of
Ochiltree County, Texas, Appellant Danny Vincent pled
guilty to the offense of burglary of a habitation. (A.3).
His punishment was assessed on that day as a two
thousand dollar fine and imprisonment for six years in
the Texas Department of Corrections. (A.5). The
imposition of sentence was suspended, however, and
Vincent was placed on probation. (A.8). Among the
conditions of probation were the requirements that he
“commit no offense against the laws of this or of any
other state or of the United States;” that he “avoid
injurious or vicious habits;” that he “refrain absolutely
from drinking intoxicants in all forms;” that he pay a
small probation fee regularly and make restitution to
the victim of his crime, provided that he was financially
able to do so; and that he make written monthly reports
to his probation officer concerning his employment.
(A.10). Vincent’s probation officer discussed all these
conditions with Vincent. (R. 6-7, 92). He swore to obey
them all. (A.10).
Approximately four months later, on October 3, 1977,
the district attorney and a probation officer filed a
motion for a warrant to arrest Vincent for the purpose of
revoking his probation, alleging that on September 28,
1977, he had committed the criminal offenses of trespass
and possession of marijuana. (A.12). Vincent was
ah
arrested upon the resultant warrant and apparently
remained in jail until October 18, 1977, when he signed
and submitted a motion for release to the Court. (A.14).
The same day, the trial judge signed an order granting
his release and continuing him upon probation with the
added conditions that he report weekly to his probation
officer, that he “not associate with anyone known to use
or to have used drugs of any type,” and that he appear at
any subsequent revocation hearing. (A.15, R.35). Again
Vincent swore to obey these conditions. (A.14).
Less than four months later, on the evening of
February 3, 1978, Jack Nelson, a Perryton, Texas,
police officer, observed Vincent driving his car in an
irregular manner. (R. 41-43). Nelson had some
difficulty in getting Vincent to pull his vehicle over to
the side of the road. (Jd.). When Vincent finally did so
and got out of his car, Nelson observed:
[H]is hair was a little messed up. He was glassy
eyed and he propped up against the car and also
smelled alcohol on his breath.
(R.45). Vincent told Nelson that he was on probation
(R.47) and that he had been drinking beer. (R.83).
Vincent, in fact, testified at his eventual revocation
hearing that he had been drinking beer for “[s]even or
eight hours” before his arrest. (/d.). Nelson arrested him
for driving while intoxicated (R.49), and called Jeff
Hooper, Vincent’s probation officer,to meet him at the
Perryton police station (R.47), where he then
transported Vincent.
Hooper met Vincent and Nelson within minutes of
their arrival at the police station. (R.49). He discussed
the arrest with Nelson (R.29), and gave Vincent his
Miranda warnings. (R.31). He then spent thirty to forty
minutes with Vincent (R.13), observing the following:
His eyes were bloodshot, he had alcohol odor on
his breath, he was very talkative. . .His
-5-
walking, he seemed to sway a little bit when he
walked, slow steps. . .His speech was slurred.
(R.14). Hooper stated that in his experience -- which
included a Bachelor of Science degree in criminal
justice, a year as chief of police in another Texas city
(R.17), and extensive work as a probation officer with
“people who have alcoholic problems” (/d) -- Vincent
was intoxicated. (R.20).
Officer Nelson’s observations at the police station
during this time corroborated Hooper’s:
[Vincent] was very talkative. His walk was
kind of a weave and he was very slow in
walking. . .[His walk] was slow and hesitant. He
was unsure of himself.
(R.50). As he had concluded before the arrest, Nelson
was convinced Vincent “was under the influence” of
intoxicants. (R.52).
Three days later, on February 6, 1978, the district
attorney and a probation officer filed a supplementary
motion for Vincent’s arrest and to revoke his probation.
(A.16). The motion alleged that Vincent had broken four
conditions of his probation in that he had committed the
criminal offense of driving while intoxicated, had failed
to refrain from drinking intoxicants, had failed to pay
his probation fees for two months, and had failed to
submit his written monthly employment report in
January, 1978. (A.16-17).
Vincent was apparently released that weekend, but
was rearrested on February 6, 1978, (A.21), and
remained in jail until March 27, 1978, when he was
released on bond. (R.23,74,80,112). Meanwhile, on
approximately February 17, 1978, Vincent had a
discussion with Jeff Hooper in the jail. Hooper advised
him to retain an attorney if he didn’t already have one.
(R.77). At some point, Vincent contacted Danna Kay
Archer, the attorney who had represented him during
—£-
the earlier burglary proceedings ending in probation.
(A.3,5,8). He contacted Archer twice himself (R.92),
talking to her on the telephone on one occasion (R.76),
and other discussions were held with her by other
persons on his behalf (R.92). Vincent didn’t know that
Archer was not going to represent him in the revocation
of probation proceedings until shortly before he talked
to his eventual and present attorney, Robert D.
McCutcheon, on March 15, 1978. (/d.).
On March 2, 1978, a notice setting a hearing for
March 27, 1978, to determine why probation should not
be revoked was filed with the court (A.24-25). The
record does not reflect whether the State, Vincent, or
the court sua sponte instigated this setting. The trial
court formally appointed Robert McCutcheon counsel
for Vincent on March 24 (Tr.22; Brief for Appellant at
5), although McCutcheon and Vincent had met on
March 15, 1978. (R.76). The court on March 27 also
heard formal prehearing motions (Tr.17-20), and
ordered Vincent’s bond reduced from $7500.00 to
$5000.00. (Tr.24). The record contains no original bond
setting.
A formal revocation hearing was held before the 84th
District Court of Ochiltree County, Texas, on April 10,
1978. Three witnesses, including probation officer
Hooper and Jack Nelson, the arresting police officer,
testified for the State of Texas, and three witnesses,
including Vincent, testified for the defense. Vincent
admitted at the hearing, as he had to the arresting police
officer weeks earlier, that he had violated the terms and
conditions of his probation by drinking and driving.
(R.83-84). His explanation for this conduct was as
follows:
Well, I had -- I was sort of talked into it and that
and stresses and strains, it was a release type. I
couldn’t cope with what was happening to meso
I had to find some way out of it.
(R.84).
4.
Vincent’s probation was revoked by the trial judge of
the 84th District Court on June 5, 1978, for driving while
intoxicated. (A.28). On July 11, 1978, he was sentenced
by the court to serve six years in the Texas Department
of Corrections. (A.32-33). On August 2, 1978, his appeal
bond was increased from $2000.00 to $12,000.00. The
record does not reflect how or when his bond had been
reduced from its earlier $5000.00 setting.
Vincent ,appealed to the Texas Court of Criminal
Appeals, challenging his probation revocation
primarily on the ground that he was denied due process
of law in failing to receive a preliminary hearing prior
to his revocation hearing. He further alleged that Tex.
Code Crim. Proc. Ann. art. 42.12, sec. 8, is
unconstitutional for failing to provide such a prelimin-
ary hearing.
The Texas Court of Criminal Appeals affirmed the
revocation in Vincent v. State, No. 60,564
(Tex.Crim.App., Sept. 19, 1979), an unpublished
opinion (A.38). See Table, 586 S.W.2d 880. A motion for
rehearing was denied on October 10, 1979. This appeal
followed.
SUMMARY OF ARGUMENT
I. The historical, statutory, and case law
development of probationers’ rights in Texas has
always paralleled or exceeded this Court’s
pronouncements as to the procedural and substantive
proeess that is due parolees and probationers under the
United States Constitution. The Texas Court of
Criminal Appeals has consistently accorded Texas
probationers more procedural due process rights than
mandated by this Court in Gagnon v. Scarpelli, 411 U.S.
778 (1973). The Texas Legislature and the Court of
Criminal Appeals have fashioned probation revocation
procedures in Texas that have consistently been thought
to go further than the minimal constitutional
requirements. This Court, especially in light of its
-8-
previous admonitions that the states should have
flexibility to develop their own procedures for
according due process of law to arrested probationers,
should endorse the Texas procedures.
It is true that appellant Vincent received no
preliminary hearing after his arrest for violating the
conditions of his probation and before his revocation
hearing. But the primary purpose of a preliminary
hearing, a judicial determination of probable cause to
prevent lengthy pretrial incarceration on an
insubstantial basis, was fulfilled by other features of
Texas law. Vincent was arrested by a police officer for
driving while intoxicated. He admitted to the officer
that he was on probation and had been drinking. His
probation officer met with him minutes after his arrest
and determined that Vincent was in violation of the
conditions of his probation. A warrant for Vincent’s
arrest was then issued by a Texas judge after the
presentation of some evidence by state authorities.
After he was incarcerated, Vincent failed to avail
himself of his statutory right to a revocation hearing
within twenty days, even though he had free access to
attorneys during the time he was in jail. He was, in fact,
released on bond prior to his eventual revocation
hearing, at which he was represented by appointed
counsel and accorded an unchallenged full and fair
opportunity to argue that he should be continued on
probation, in spite of his obvious violation of the
conditions of probation. All these procedures, especially
in light of the existing procedures in other jurisdictions,
are ample to show that Vincent has not been denied due
process of law.
In the alternative, the Texas probation revocation
statute should not be declared unconstitutional for
failure to afford probationers a preliminary hearing.
Instead, if there is a constitutional defect in the Texas
statutes, it is only that there is no requirement that
arrested probationers be informed of their right to a full
revocation hearing within twenty days after one is
-9-
requested. Such a holding should mark the limits of this
Court’s incursion upon Texas probation procedures.
II. Vincent complains that he was denied a
preliminary hearing to establish probable cause. If the
pre-hearing procedures were insufficient to substitute
for that determination, then Texas argues that the error
was rendered harmless in light of the subsequent full
and fair revocation hearing. It would be pointless in the
extreme to remand this cause for a determination of
probable cause when Vincent was found guilty of
violating the conditions of his probation upon a
preponderance of the evidence at his actual hearing on
the merits. Vincent could not have been prejudiced by
the past failure to have determined that there was
probable cause to arrest him because the outcome of his
revocation hearing indisputably establishes that such a
minimal burden would easily have been met. Clearly
Vincent’s present incarceration is not a result of any
past wrong.
Any decision adverse to Texas should be applied
prospectively only. Texas and other states have in many
cases refused to accord preliminary hearings to
arrested probationers where adequate procedural
substitutes have been provided. Thousands of
incarcerated probation offenders should not be released
where the states have erroneously believed in good faith
that they were complying with all constitutional
requirements.
III. This appeal should be dismissed because
Vincent failed to comply with former Sup. Ct. R. 11(1),
requiring that notice of appeal to this Court be filed in
the court possessed of the record within ninety days
after judgment. In this case, the court possessed of the
record, as well as the court rendering the final judgment
from which Vincent seeks to appeal, is the Texas Court
of Criminal Appeals, the highest Texas court with
criminal jurisdiction. Instead, Vincent filed notice of
appeal in the state convicting trial court, which was
-10-
neither possessed of the complete record nor the source
of the judgment from which he now seeks to appeal. In
light of the policies of Rule 11, this Court should now
dismiss the appeal for want of jurisdiction to entertain
it. ARGUMENT
1.
TEXAS PROBATION REVOCATION PRO-
CEDURES ARE CONSTITUTIONAL AND
DENIAL OF A PRELIMINARY HEARING
DID NOT DEPRIVE APPELLANT
VINCENT OF DUE PROCESS OF LAW.
A. Texas Probation Revocation Procedures
Exceed the Due Process Requirements of
the Fourteenth Amendment.
1. The judicial and legislative development of
the due process and statutory rights of
probationers in Texas has always
paralleled or exceeded the development of
probationers’ due process rights in this
Court.
The federal law
Federal constitutional development of the due process
rights of probationers is a comparatively recent
phenomenon. The modern concept of probation, in fact,
was unknown to the common law, although English
courts historically had “a sentencing discretion that
varied from era to era in British history.” Cohen,
Sentencing, Probation and the Rehabilitative Ideal; The
View From Mempa v. Rhay, 47 Tex. L. Rev. 1, 18 (1968).
Modern probation practices derived from the common
law practice of suspending the sentences of persons who
were pregnant, insane, pardoned by the crown, or not
the same person as convicted by the jury. Note, 5 Tex.
Tech. L. Rev. 833, 834 (1974), citing 4 W. Blackstone,
Commentaries 396. See Ex parte United States, 242 U.S.
27, 44-45 (1916).
-l1-
Although some commentators believe that probation
may have been used as early as 1681 in the American
colonies, A. Campbell, Law of Sentencing, §11 at 51-52
(1978), citing S. Rubin, the Law of Criminal Corrections,
176-77 (1963), it was not employed systematically until
at least 1850. 8 Gonzaga L. Rev. 110 (1972).
Massachusetts promulgated the first American
probation statute in 1878. Campbell, §11 at 52 n. 51. It
was this Court’s holding in Ex parte United States, 242
U.S. 27 (1916), to the effect that there is no inherent
judicial power to probate sentences, that led to
enactment in 1925 of the first federal probation law, Act
of Mar. 4, 1925, ch. 521, 48 Stat. 1259-61 (currently 18
U.S.C. §3651). Comment, 11 Hous. L. Rev. 895, 896
(1974); see Roberts v. United States, 320 U.S. 264 (1948).
In 1932 the Court held that probationers have few, if
any, due process rights or procedural protections, Burns
v. United States, 287 U.S. 216 (1932). The primary basis
of the decision was that probation is a privilege, not a
right, and consequently its revocation was viewed as a
matter within the discretion of the trial court. /d. at 220-
22. This holding was reaffirmed three years later in
Escoe v. Zerbst, 295 U.S. 490, 492 (1935), which
characterized probation as an “act of grace.”
In Mempav. Rhay, 389 U.S. 128 (1967), the unanimous
Court, speaking through Mr. Justice Marshall,
drastically altered the status of probationers in the eyes
of the Constitution. The Court noted that Gideon v.
Wainwright, 372 U.S. 335 (1963), Hamilton v. Alabama,
368 U.S. 52 (1961), Moore v. Michigan, 355 U.S. 155
(1957), and Townsend v. Burke, 334 U.S. 736 (1948),
“clearly stand for the proposition that appointment of
counsel for an indigent is required at every stage of a
criminal proceeding where substantial rights of a
criminal accused may be affected.” Mempa, 389 U.S. at
134. Consequently, while applauding Washington’s
sentencing proceeding as “an enlightened step
forward,” the Court decided “that a lawyer must be
afforded at this proceeding whether it is labeled a
-12-
revocation of probation or a deferred sentencing.” Jd. at
137.
In Morrissey v. Brewer, 408 U.S. 471 (1972), the Court
for the first time accorded substantial due process
protections to parolees threatened with revocation.
Reasoning that parolees have some liberty interest in
their status such that its “termination calls for some
_ orderly process, however informal,” 7d. at 482, the Court
established a two-step process. First, primarily because
there is “typically” a substantial time lag between arrest
and revocation and geographic disparity between the
site of the arrest and the revocation, the Court mandated
a preliminary hearing “at or reasonably near the place
of the alleged parole violation or arrest and as promptly
as convenient after arrest while information is fresh and
sources are available.” Jd. at 485. The constitutional
requirement of this hearing, id. at 485-87, may be
summarized as follows:
(1) The preliminary hearing must be before an
independent, though not necessarily a judicial officer.
(2) There must be fair notice of the time, place, and
purpose of the hearing.
(3) The accused must be able to speak on his own
behalf.
(4) Upon request, he must be able to confront and
question adverse witnesses, unless a security risk is
shown.
(5) There should be a written summary of the
hearing.
(6) Reasons for a finding of probable cause should be
provided.
Morrissey provided similar but expanded rights at
the subsequent parole revocation hearing: written
notice of the alleged violations, disclosure of adverse
-13-
evidence, opportunity to speak and present evidence,
opportunity to confront and cross-examine adverse
witnesses (unless a security risk isshown), and a written
summary by the factfinders, Jd. at 489.
Less than a year later, the Court decided Gagnon v.
Scarpelli, 411 U.S.778 (1973), the case that is the
principal battle ground of the present dispute. Noting
that Mempa v. Rhay, 389 U.S. 123 (1967) and Morrissey
v. Brewer, 408 U.S. 471 (1972), “set the bounds for our
present inquiry,” Scarpelli at 781, the Court noted that
respected commentators unanimously -- and
presumably correctly -- “have agreed that revocation of
probation where sentence has been imposed previously
is constitutionally indistinguishable from the
revocation of parole.” Jd. at 782 n. 3. Because the
Scarpelli probationers had been sentenced at the time of
trial, the Court viewed them as situated similarly to the
Morrissey parolees rather than the Mempa probationer,
who had not been sentenced until his probation was
revoked.
Thus, the Scarpelli Court held the Morrissey
procedural guarantees applicable to previously
sentenced probationers. Scarpelli at 786. The Court
declined to establish a Mempa per se right to counsel in
such circumstances, however, believing that a case-by-
case determination would adequately serve the ends of
justice. Scarpelli at 790.
The Texas law
The Texas Legislature enacted its Suspended
Sentence Law, Tex. Penal Code arts. 776-781, in 1913.
See Morrisson, Interpretive Commentary, foll. Tex. Code
Crim. Proc. Ann. art. 42.12. The modern statute was
passed in 1965 to correct prior claims of abuse, “either
real or supposed.” Onion, Special Commentary, foll.
Tex. Code Crim. Proc. Ann. art. 42.12.
The elaborate panoply of procedural and substantive
-14-
guarantees accorded probationers in Texas will be more
fully explored below. Probation has not been the
procedural stepchild in Texas that it has been in some
other states. First, its use as a rehabilitative tool has
“experienced astounding growth” in recent years.
Arnold, A Survey of Recent Law Concerning Revocation
of Probation in Texas, 52S. Tex. L. J. 92 (1974). In 1979,
for example, there were a total of 52,412 felony
convictions in Texas; 33,252 of these resulted in
probation. Texas Judicial Council, 51st Annual Report
at 132 (1979). The statistics for the years 1975 through
1978 are substantially similar, with approximately 60%
of all felony convictions ending in probation. (See
Supplement B hereto). On September 1, 1976, there
were more adult felony probationers in Texas -- 52,250 --
than in any other state except California, which on that
date had 63,324 such probationers. U.S. Department of
Justice, State and Local Probation and Parole Systems,
Table 6 at 35 (Feb., 1978). By contrast, New York, for
example, had only 25,228 probationers and Illinois,
11,343. (7d.).
During the same time, the hallmarks of developing
Texas probation law included revocation proceedings
that were always judicially, never administratively,
conducted. With few exceptions, all the rules of criminal
procedure are applicable. There is an unqualified per se
right to counsel at Texas revocation of probation
proceedings, as well as unlimited right of appeal to the
Texas Court of Criminal Appeals.
Given these developments, the holdings in dicta of the
Texas Court of Criminal Appeals in Ex parte Shivers,
501 S.W.2d 898 (Tex.Crim.App. 1973), Grant v. State,
505 S.W.2d 259 (Tex.Crim.App. 1974), and Whisenant v.
State, 557 S.W.2d 102 (Tex.Crim.App. 1977) -- so
roundly criticized in the Brief for Appellant at 12-14 --
are much more understandable. In considering whether
Texas probationers faced with possible revocation enjoy
the right to counsel, the Court of Criminal Appeals has
duly noted the Mempa-Scarpelli distinction based upon
=
suspension of imposition or suspension of execution of
sentence. It is Mempa, not Scarpelli, that more closely
resembles the Texas procedure.
It is also true that this Court has made it very clear
that there is much room for flexibility in the
promulgation of state codes of criminal procedure
respecting revocation proceedings:
We cannot write a code of procedure; that is the
responsibility of each State...
We have no thought to create an inflexible
structure for parole revocation procedures.
Morrissey v. Brewer, 408 U.S. at 488, 490. Probationers
for many years have occupied a favored status in Texas
criminal law; it is this status that has caused the Texas
Court of Criminal Appeals to reject as inadequate the
protections afforded probationers by Gagnon v.
Scarpell1. Where a probationer has pointed out a
particular right -- such as the right to a preliminary
hearing insisted upon by Vincent -- apparently afforded
probationers under Scarpelli, but not afforded Texas
probationers generally, the Court of Criminal Appeals
has somewhat indignantly responded that the Texas
probation revocation procedures in general greatly
exceed the constitutional requirements. As a result; the
Court of Criminal Appeals not unreasonably has
believed that there is room for some play in the
constitutional joints concerning specific details of its
overall probation procedures.
2. Texas has responded appropriately in
fashioning its own scheme of due process
for probationers.
As this Court stated in Morrissey v. Brewer, 408 U.S.
471, 482 (1972):
Once it is determined that due process applies,
the question remains what process is due. It has
-16-
been said so often by this Court and others as
not to require citation of authority that due
process is flexible and calls for such procedural
protections as the particular situation
demands.
Examination of the procedural protections afforded
probationers in Texas in comparison with those in other
jurisdictions, see Supplement C, is indeed startling.
First, a probationer in Texas ordinarily cannot be
arrested until there has already been a judicial
determination of probable cause. A probation officer is
not a peace officer within the meaning of the Texas
statutes. Tex. Code Crim. Proc. Ann. art. 2.12. For that
reason, his power to arrest a probationer or anyone else
is no greater than that of a private citizen. That power,
as stated in Tex. Code Crim. Proc. Ann. art. 14.01, isthe
power to arrest without a warrant whenever an offender
commits “in his presence or within his view” any offense
“classed as a felony or as an offense against the public
peace.” Thus, Texas probationers are protected from
arrest by their probation officers unless, in compliance
with Tex. Code Crim. Proc. Ann. art. 42.12, sec. 8, such
probation officer obtains “the order of the judge of such
court” that the probationer should be arrested. Cf. 18
U.S.C. §3653, which allows federal probation officers to
arrest probationers without a warrant.
Arrested Texas probationers may be admitted to bail
in the discretion of the trial court. Ex parte Ainsworth,
532 S.W.2d 640 (Tex.Crim.App. 1976); Valdez v. State,
508 S.W.2d 842 (Tex.Crim.App. 1973). They enjoy both
a general due process and a specific statutory right toa
speedy revocation hearing. The former derives from the
holdings of Texas courts that the speedy trial rights
embodied in U.S. Const. amend. VI and Tex. Const. art.
I, §10, are applicable to probation revocation
proceedings. Fariss v. Tipps, 463 S.W.2d 176 (Tex.
1971). See Part II (A) below.
Further, Tex. Code Crim. Proc. Ann. art. 42.12, sec.
-17-
8(a) provides that a revocation hearing must be held
within twenty days after one is requested. This
provision is very strictly construed, Ex parte Trillo, 540
S.W.2d 728 (Tex.Crim.App. 1976), and is obviously
designed to safeguard arrested probationers from
undesirably lengthy pre-hearing incarceration.
The site of a revocation hearing is the state convicting
court or the jurisdiction “where a violation of the
conditions of probation occurs.” Tex. Code Crim. Proc.
Ann. art. 42.12, sec. 5.
As Vincent concedes, Texas provides far m»re than is
constitutionally required at the hearing to revoke
probation. (Brief for Appellant at 11-12). All the
following additional features of the Texas scheme have
been construed in favor of probationers:
(a) Texas probationers are entitled to detailed
written notice of the claimed violations of probation.
Gordon v. State, 575 S.W.2d 529 (Tex.Crim.App. 1978);
Graham v. State,502 S.W.2d 809 (Tex.Crim.App. 1973);
Burkett v. State, 485 S.W.2d 578 (Tex.Crim.App. 1972).
(b) There is a per se right to appointed counsel for
indigent probationers. Ex parte Sanders, 588 S.W.2d
383 (Tex.Crim.App. 1979); Ex parte Shivers, 501 S.W.2d
898 (Tex.Crim.App. 1973).
(c) Unfavorable evidence must be disclosed.
Whisenant v. State, 557 S.W.2d 102 (Tex.Crim.App.
1977).
(d) The opportunity to be heard in person and to
present witnesses and documentary evidence must not
be abridged. Whisenant v. State; Masters v. State, 545
S.W.2d 180 (Tex.Crim.App. 1977).
(e) Probationers have the right to confront and
cross-examine adverse witnesses. Whisenant v. State;
Masters v. State.
-18-
(f) A judicial and neutral setting is provided for the
determination whether to revoke probation, at which
the rights of speedy trial, Carney v. State, 573 S.W.2d 24
(Tex.Crim.App. 1978), the Fourth Amendment
exclusionary rule, Tamez v. State, 534 S.W.2d 686
(Tex.Crim.App. 1976), protection from coerced
confessions, Dowdy v. State, 584 S.W.2d 336 (1976), and
virtually all other procedural ru!es associated with
ordinary criminal trials are fully applicable. Whisenant
v. State; Masters v. State; Lovorn v. State, 536 S.W.2d 356
(Tex.Crim.App. 1976).
(g) The probationer is entitled to a _ written
statement by the factfinders as to the evidence relied on
and reasons for revoking probation. Whisenant v. State;
Sappington v. State, 508 S.W.2d 840 (Tex.Crim.App.
1974).
(h) There isa full right of appeal from the decision to
revoke probation. Tex. Code Crim. Proc. Ann. art. 40.09.
From examination of the statutes and case law of
other jurisdictions, it appears safe to say that few, if any,
other states afford their probationers all these
procedural and substantive protections. (See
Supplement C). The Texas procedures far exceed those
suggested by the ABA Standards Relating to
Probation, §§5.1-5.4 (Feb. 1970 Draft). Only by
myopically focusing in a manifestly unfair manner upon
a very minor aspect of the Texas procedures -- the lack of
a preliminary hearing -- may it be concluded that the
Texas statutory scheme is deficient. Appellee avers that
it is not.
3. In view of the fact that Vincent received
a judicial determination of probable cause
before he was arrested and was released
on bond prior to his full and fair revocation
hearing, he was not entitled to a pre-
liminary hearing.
-19-
Consideration of all the facts of Vincent’s case lead
ineluctably to the conclusion that he has received ample
due process protections. Wholly apart from his
revocation hearing, which is unchallenged on any due
process ground and could not be so challenged because
of its full and fair nature, it should be recalled that he
was arrested for driving while intoxicated by a police
officer to whom he admitted that he was on probation
and had been drinking. (R. 47, 83). The police officer
formed the opinion that he was intoxicated, and called
his probation officer. (R. 47, 49). He transported Vincent
to jail where they were both met by Vincent’s probation
officer. (R. 49). That officer spoke with Vincent for a
lengthy period of time, observed that he was
intoxicated, and discussed the matter further with the
arresting officer. (R. 13,14,31). He obtained a warrant
for the arrest of Vincent. (A. 16-18). The order granting
the arrest warrant issued by the trial judge states that
the Court heard and considered the evidence offered in
support and believed there was ample cause to arrest
Vincent. (A. 18).
After being arrested, Vincent was hardly held
incommunicado. He had a telephone conversation with
his previous attorney and was visited by his prcbation
officer. (R. 76-77, 92; Tr.22). He obtained a new attorney
while in jail. (R. 76,92). Bail was available to him and he
in fact was released on bond weeks before the revocation
hearing. (Tr. 24; R. 23, 74, 80, 112).
In light of all these circumstances, the Court should
not hold that Texas violated Vincent’s constitutional
rights by not affording him a preliminary hearing.
Vincent admitted violating his probation at the time of
his arrest. There was a judicial determination of
probable cause to arrest him for that violation. He had
free access to attorneys during the time he was in jail,
and was released on bond prior to the eventual hearing,
at which he received many more procedural protections
than those minimally required by the Constitution.
-20-
To hold that in spite of all these factors, Texas was
nevertheless bound to go through the meaningless
formalistic ritual of a preliminary hearing would be
contrary to this Court’s frequent admonitions that the
Constitution provides for flexibility in state procedures
concerning the protection of criminals’ rights.
Moreover, in light of the purpose of the preliminary
hearing, it would impermissibly elevate form over
substance. The principal such purpose -- to prevent
lengthy pretrial incarceration with no_ judicial
determination of probable cause -- was achieved by
other means in Vincent’s case. A second such purpose, to
preserve any relevant testimony of witnesses, was
fulfilled by the full and fair revocation hearing that
itself under Texas law required the presence and
testimony of relevant witnesses.
Appellant Vincent has not been deprived of due
process of law, but has in fact been treated more fairly
than he might have been in virtually any other
jurisdiction.
Indeed, it is worthwhile to note the numerous
judicially created exceptions to the general
requirement of a preliminary hearing in_ those
jurisdictions -- many of which, unlike Texas, have no
provision for any other judicial determination of
probable cause prior to arrest. It has often been held, for
example, that where the probationer is not taken into
custody until the revocation hearing, there is no need for
a preliminary hearing at all. United States v. Sciuto, 531
F.2d 842, 846 (7th Cir. 1976); Fay v. Commonwealth, 399
N.E.2d 11 (Mass.S.Jud.Ct. 1980); Curtis v. State, 370
N.E.2d 385, 387-88 (Ind.Ct.App. 1977); State v. Fry, 550
P.2d 697 (Wash.Ct.App. 1976); Pearson v. State, 241
N.W.2d 490, 493 (Minn. 1976); Petition of Meidinger, 539
P.2d 1185 (Mont. 1975).
There is no need for preliminary hearing where the
probationer is validly incarcerated on other grounds.
United States v. Sutton, 607 F.2d 220 (8th Cir. 1979);
-21-
United States v. Tucker, 524 F.2d 77 (5th Cir. 1975), cert.
denied, 424 U.S. 966 (1976). There is no need for a
preliminary hearing where the probationer or parolee
has already been indicted by agrand jury for a different
offense, Inmates’ Councilmatic Voice v. Rogers, 541 F.2d
633, 635 (6th Cir. 1976), or where the parolee or
probationer has already been convicted of another
offense, Jones v. Johnston, 534 F.2d 353, 357 (D.C. Cir.
1976).
Other courts have held that there is no need for a
preliminary hearing where the probable cause is
evident, as, for example, where the probationer is
arrested out of state in apparent violation of a plain
condition of his probation. Chilembwe v. Wyrick, 574
F.2d 985, 987 (8th Cir. 1978); Stedham v. Wyrick, 567
F.2d 836, 837-38 (8th Cir. 1977).
There is no need for a preliminary hearing where the
parolee or probationer admits that he is in violation of
his parole or probation. State v. Lohnes, 266 N.W.2d 109
(S.D. 1978); People v. Rial, 249 N.W.2d 114 (Mich. 1976);
Gardner v. Collier, 274 So.2d 662 (Miss. 1973).
Clearly a preliminary hearing is not an indispensible
element of the due process that must be afforded
probationers. In some circumstances it may be a valid
means of implementing due process interests. But in
others, it is not an invariable or even the best means of
implementing such interests. In light of the entire Texas
statutory scheme and the facts of the instant case, the
failure to give Vincent a preliminary hearing did not
deny him due process of law.
B. If the Texas Probation Revocation Statute
is Unconstitutional, It can only be Unconstitu-
tional to the Extent that it does not Provide
for Notice to be given to Arrested Probationers
of their Right to a Prompt Hearing.
Alternatively, Texas asks that Tex. Code Crim. Proc.
-22-
Ann. art. 42.12 not be held unconstitutional for failure to
afford Vincent a preliminary hearing. There is a much
less onerous alternative, in light of the Texas statute,
that would appear uncontestably to fulfill all the goals of
a preliminary hearing set forth in Gerstein v. Pugh, 420
U.S. 103 (1975) and Gagnon v. Scarpelli, 411 U.S. 778
(1973). Vincent correctly notes the statutory
requirement that a full revocation hearing be held
within twenty days after one is requested by the
arrested probationer. His principal complaint is that he
was allegedly unaware of this protection. Surely he
would not be before the Court if he had known he
possessed the means to end his prehearing incarceration
after only twenty days. The most, therefore, that this
Court should do is to hold the Texas statute
unconstitutional only to the extent of its failure to
inform arrested probationers of their statutory right to
a revocation hearing within twenty days after one
is requested. Such relief would be much less
burdensome to Texas, and yet afford arrested
probationers all important rights to which they are
entitled.
Il.
ANY ERROR IN NOT ACCORDING
VINCENT OR ANY OTHER TEXAS
PROBATIONER A PRELIMINARY
HEARING IS, IN LIGHT OF THE TEXAS
REQUIREMENTS OF A _ PRE-ARREST
DETERMINATION OF PROBABLE
CAUSE AND A FULL AND FAIR
REVOCATION HEARING, HARMLESS
BEYOND A REASONABLE DOUBT.
A. The Texas Courts’ Refusal to Accord Vincent
a Preliminary Hearing has no Bearing on his
Present Incarceration.
Vincent, as discussed in detail in Part I(A) above, was
accorded a full panoply of due process rights at his
-23-
probation revocation hearing. His present
constitutional challenge is limited to the assertion that
he did not receive a preliminary hearing. He complains
of no inadequacy or deficiency whatsoever in the
revocation proceedings. Further, he admitted the basis
of his revocation at the hearing -- that he was driving
while intoxicated. He challenges only an allegedly
improper temporary detention prior to the revocation
hearing. And he raises this challenge even though he
was arrested for violating his probationary conditions
only after issuance of a judicial warrant executed after a
showing of probable cause. (A. 18).
Vincent offers the Court two choices in the event it is
concluded he was wrongfully denied a preliminary
hearing. First, he suggests that the Court “remand the
case for a determination of probable cause” that he has
violated the conditions of his probation. (Brief of
Appellant at 17). Vincent has, however, already
received this determination -- not once, but twice. First,
the state trial court “heard and considered the evidence”
and determined that a warrant for Vincent’s arrest
should issue. (A. 18). Second, at the hearing on the
merits, the trial judge determined that the State had
fulfilled its burden to show by a preponderance of the
evidence that Vincent had violated his probationary
conditions. If the State adduced “that greater weight of
the credible evidence which would create a reasonable
belief that the defendant has violated a condition of his
probation,” the necessary Texas standard under
Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Crim.App.
1974), that the State has demonstrated probable cause to
arrest is a fortiori. Vincent also asks that the Court
reverse the judgment and “direct the dismissal of the
Texas proceedings” in their entirety. (Brief of Appellant
at 17). That avenue of relief, however, should be
foreclosed because Vincent’s present incarceration is
not a result of the wrong he purportedly suffered:
deprivation of a preliminary hearing.
-24-
This conclusion is apparent from examination of
Gerstein v. Pugh, 420 U.S. 103 (1975), where the Court
determined that unindicted defendants in Florida who
were arrested without warrants were denied their
rights to a preliminary hearing in violation of the
Fourth Amendment to the United States Constitution.
Even so: “[A] conviction will not be vacated on the
ground that the defendant was detained pending trial
without a determination of probable cause.” Gerstein v.
Pugh, 420 U.S. at 119. The basis for this decision is the
well-established rule that an illegal arrest or detention
will not void a subsequent conviction. United States v.
Crews, ___. U.S. —___ , 100 S.Ct. 1244 (1980); Rose v.
Mitchell, 443 U.S. 545, 576 (1979)(concurring opinion of
Stewart, J.); Gerstein v. Pugh; Frisbie v. Collins, 342
U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886).
The Gerstein v. Pugh rule, as distilled from the so-
called Ker-F risbie doctrine, seems plainly applicable to
Vincent, a probationer detained upon a warrant, but
without a formal preliminary hearing. In fact, all courts
that have considered the matter, including Collins v.
Turner, 599 F.2d 657, 658 (5th Cir. 1979); and United
States v. Companion, 545 F.2d 308, 313 (2d Cir. 1976),
are apparently in unanimous agreement upon the point.
See also, United States v. Millican, 600 F.2d 278, 275
(5th Cir. 1979), cert. denied, ___. U.S. ___ , 100 S.Ct.
1274 (1980); United States v. Postal, 589 F.2d 862, 873
(5th Cir.), cert. denied, 444 U.S. 832 (1979); Pruitt v.
Hutto, 542 F.2d 458, 459 (8th Cir. 1976); United States v.
Marzano, 537 F.2d 257, 271 (7th Cir.), cert. denied, 429
U.S. 1038 (1976); United States v. Miller, 532 F.2d 1335,
1339 (10th Cir.), cert. denied, 429 U.S. 839 (1976); Britt v.
McKenney, 529 F.2d 44, 46 (1st Cir.), cert. denied, 429
U.S. 854 (1976); United States v. Lira, 515 F.2d 68, 72
(2d Cir.)(concurring opinion of Oakes, C.J.), cert. denied,
423 U.S. 847 (1975). Cf. United States v. Toscanino, 500
F.2d 267 (2d Cir. 1974).
The purpose of the Gerstein v. Pugh preliminary
-25-
hearing -- to determine probable cause -- is not precisely
identical with that of the Morrissey-Scarpelli
preliminary hearing, which serves the purpose of
gathering and preserving testimony where the final
revocation hearing may be held at a distant place from
the violation. Gerstein v. Pugh, 420 U.S. at 867 n. 22.
Nevertheless, the general nature of the claim that a
defendant or probationer was denied a preliminary
hearing, which is essentially one of illegal detention
pending trial or final probation revocation, is the same.
The established rule applied in Gerstein v. Pugh that an
illegal detention will not void a subsequent conviction
should be applied in the present case. Such a rule would
not save Texas from an otherwise correct adjudication
that its probation statute is at least in part
unconstitutional, but would save Texas from the more
onerous and unfair effects of such an adjudication.
It has been suggested that this analysis, focusing upon
the inappropriateness of release from custody as a
remedy for violation of a right bearing no relation to
present incarceration, has “the unfortunate ring to it of
affording a right without a remedy.” United States v.
Companion, 545 F.2d 308, 318 (2d Cir. 1976), citing
United States ex rel. Hahn v. Revis, 520 F.2d 632, 639
(7th Cir. 1975). There are several satisfactory responses,
however, as found by the Second Circuit Court of
Appeals in United States v. Companion. This is
particularly true in Texas.
First, for extreme violations, a claim for monetary
damages under 42 U.S.C. §1983 or perhaps Tex. Rev.
Civ. Stat. Ann. art. 6252-26, see Estelle v. Gamble, 429
U.S. 97, 107 & n.15 (1976), would seem appropriate.
Baker v. McCollan, 483 U.S. 1387 (1979);
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). It is true that in light of the present
pronouncements of the Texas Court of Criminal
Appeals, especially Whisenant v. State, 557 S.W.2d 102
(Tex.Crim.App. 1977), a good faith defense based upon
reliance on existing law would probably bar any such
-26-
cause of action. See Procunier v. Navarette, 434 U.S. 555
(1978); Imbler v. Pachtman, 424 U.S. 409 (1976). But a
pronouncement that preliminary hearings are
constitutionally required under Texas procedures
would render a damages claim available in the future.
In addition, there are several aspects of Texas law
that greatly ameliorate an arrested probationer’s
circumstances. (See Part I(A) above). In particular, the
Texas courts have held that the general speedy trial
rights established in the Sixth Amendment to the
United States Constitution and Tex. Const. art. I, §10,
are fully applicable to probation revocation proceedings
in Texas. Fariss v. Tipps, 463 S.W.2d 176 (Tex. 1971).
Hence, Texas probationers are protected by the
provisions of Barker v. Wingo, 407 U.S. 514 (1972), as
held in Carney v. State, 573 S.W.2d 24 (Tex.Crim.App.
1978).
Also, Texas provides a strict statutory right to a
revocation hearing within twenty days after arrest,
provided only that there be a request for such a speedy
hearing. Tex. Code Crim. Proc. Ann. art. 42.12, sec. 8(a).
The drastic remedy for violation of this statute is
dismissal of the revocation motion. Fx parte Trillo, 540
S.W.2d 728 (Tex.Crim.App. 1976). An arrested
probationer may seek his release from a pretrial
incarceration on this basis by appropriate motion for
hearing, motion for release on bond, or application for
writ of habeas corpus. Jd. See Note 5, Am. J. Crim. L.
354, 369-70 & n.64 (1977).
Finally, if an illegally arrested probationer is not
released, Texas fully applies the exclusionary rule at
probation revocation hearings to bar any evidence,
testimonial or tangible, obtained as a result of an illegal
arrest or detention. Davis v. State, 576 S.W.2d 378
(Tex.Crim.App. 1978); Tamez v. State, 534 S.W.2d 686
(Tex.Crim.App. 1976). Hence, although an illegal arrest
or detention may not bar a subsequent revocation, Texas
-27-
does prohibit the use of the fruit of any such arrest or
detention.
In summary, Vincent and other Texas probationers
are sufficiently protected against the violation of a right
to a preliminary hearing. Because Texas’s final
revocation procedures are indisputably valid, the
Gerstein v. Pugh rule should be applied to prevent the
entire probation revocation from being invalidated by a
temporary, possibly illegal detention.
B. Any Holding Adverse to Texas should be
Applied Prospectively Only.
In the substantive area of procedural protections for
parolees, probationers, and prisoners, the Court when
establishing a new rule has often followed the practice of
announcing that the rule is to be applied prospectively
only. E.g., Wolff v. McDonnell, 418 U.S. 539, 573 (1974);
Morrissey v. Brewer, 408 U.S. 471, 490 (1972). If a
holding adverse to Texas is contemplated here, Texas
requests that that practice again be followed.
The Court’s leading pronouncement upon the
retroactivity of rulings embodying procedural
guarantees is Linkletter v. Walker, 381 U.S. 618 (1965).
As summarized in Stovall v. Denno, 388 U.S. 293, 297
(1967), the analysis established in Linkletter emphasizes
the purpose to be served by the new standard, the extent
of reliance by law enforcement authorities on the old
standard, and the effect on the administration of justice
of retroactive application of the new standard. Desist v.
United States, 394 U.S. 244, 249 (1969).
The Court has applied those criteria to Morrissey-
Scarpelli procedural rules in the past and found no
sound basis for applying them retroactively. The
overriding consideration has been the “significant
impact a retroactivity ruling would have on the
administration of all prisons in the country, and the
reliance prison officials placed, in good faith, on prior
-22-
law not requiring such procedures.” Wolffv. McDonnell,
418 U.S. at 574. See Morrissey v. Brewer, 408 U.S. at 490.
The Court has also examined whether procedural
deficiencies and erroneous factual conclusions under
the old procedures were “so pervasive” as to warrant the
cost of a retroactive holding. 7d. In the instant case, these
concerns militate strongly in favor on the non-
retroactivity of any constitutionally based holding the
Court might reasonably contemplate.
First, the impact of a retroactivity ruling upon the
criminal justice systems and procedures in many states
would be enormous. Numerous states, including many
of the most populous, have refused to require
preliminary hearings generally. (See Supplement C.) A
ruling by this Court that a preliminary hearing is
mandated in all circumstances and that the failure to
provide one voids any subsequent probation revocation
would have a widespread adverse effect on the
administration of justice in Texas and elsewhere.
Probation is a commonly used tool in Texas to
encourage effective rehabilitation of convicted
criminals. In fact, during the past five years almost
sixty per cent (60%) of all felony convictions in Texas
have resulted in the imposition of probation. (See
Supplement B). During the same period of time, there
have been 20,926 revocations revoked (id.) following a
full and fair final hearing. This statistic represents less
than twenty per cent (20%) of all the probations granted
in Texas -- 7.e., more than eighty per cent (80%) of all
Texas probations appear to be successfully served (7d.).
Obviously, a significant although not precisely known
number of inmates are presently incarcerated in the
Texas Department of Corrections as a result of having
had their probations revoked.
Second, the Texas courts have legitimately
distinguished the Texas imposition of sentence
probation revocation process from the Wisconsin
execution of sentence revocation process that was
-29-
considered in Scarpelli. See Ex parte Shivers, 501
S.W.2d 898 (Tex.Crim.App. 1973). The Texas courts
have determined that Mempa v. Rhay, 389 U.S. 128
(1967) furnishes the more appropriate guidelines for
Texas procedures. Most significantly, the Texas courts
have consistently adhered to the view that because of
these guidelines, Texas is bound to exceed the minimal
Scarpelli requirements. The Texas Court of Criminal
Appeals, as discussed in detail in Part I (A) above, has
consistently held, “The proceeding to revoke probation,
although not the same as a criminal trial, requires
substantially all the same procedures.” Whisenant v.
State, 557 S.W.2d 102, 104 (Tex.Crim.App. 1977).
Thus, the Texas courts have established revocation
procedures for probationers “far greater than those
required by Morrissey v. Brewer, supra and Gagnon v.
Scarpelli, supra,” Whisenant, 557 S.W.2d at 105,
including, of course, a pro se right to counsel. In light of
this approach, which also includes the substantial pre-
revocation hearing protections discussed above, Texas
should not be penalized for not requiring formal
preliminary hearings in all cases.
Finally, the risk of procedural error is not so
pervasive in the Texas probation revoction system as to
warrant the cost or result of a retroactive requirement
that preliminary hearings be held in all probation
revocations. As argued above, every probationer is
given a final revocation hearing at which he is accorded
full due process rights. For that reason, the risk of an
erroneous factual determination at a Texas probation
revocation hearing is less than the risk in other states
that accord preliminary hearings, but give very limited
due process rights at the hearing on the merits of the
revocation motion.
In fact, it is obvious that the only persons harmed as a
result of the Texas procedures are those probationers
who were erroneously incarcerated without probable
cause before their revocation hearings. But these
-80-
persons have already received their remedy, either by
being released sometime before their hearing or by
having had their probation continued, not revoked, at
such a hearing.?
Hence, the drastic remedy of a retroactive application
of the rule advocated by Vincent would be unlikely to
help those persons who have been wronged by its
violation. No Texas revocation of probation following a
full hearing should be voided by failure to have accorded
the probationer a preliminary hearing because there is
little, if any, reason to believe that he was ever
wrongfully detained.
ITI.
VINCENT’S APPEAL SHOULD BE
DISMISSED BECAUSE HE FAILED TO
COMPLY WITH FORMER SUP.CT. R. 11()),
28 U.S.C. (1970).
A. Vincent Has Not Timely Filed a Notice of
Appeal to the Supreme Court of the United
States with the Texas Court of Criminal
Appeals, the “Court Possessed of the Record.”
Former Sup. Ct. R. (11), 28 U.S.C. (1970) -- which was.
in effect when Vincent sought to file notice of appeal --
provides as follows:
2See Supplement B, which demonstrates that fewer than half the
motions to revoke probation filed by prosecutors in Texas are
ultimately granted by the Texas courts. Even if a Texas judge finds
at a revocation hearing that a probationer has violated the
conditions of his probation, the judge may in his discretion
nevertheless continue the probation or, in certain circumstances,
reduce the originally assessed term of imprisonment if such a
reduction is in “the best interests of society and the probationer.”
Tex. Code. Crim. Proc. Ann. art. 42.12, sec. 8(a).
-31-
An appeal to review the judgment of a state
court of last resort in a criminal case shall be
deemed in time when the notice of appeal
prescribed by Rule 10 is filed with the clerk of
the court possessed of the record within ninety
days after the entry of such judgment and the
case is docketed within the time provided in
Rule 13. |
Vincent freely admits that he has failed to file notice
of appeal to this Court with the Texas Court of Criminal
Appeals, the deciding state court of last resort. (Brief for
Appellant at 2, 15). Because of his failure to comply with
this Court’s rules, Vincent’s appeal should be dismissed.
Vincent claims for the first time in his brief on the
merits that he attempted to send notice of appeal to the
Texas Court of Criminal Appeals, but that “for some
unknown reason” (Brief for Appellant at 16) filing was
never accomplished. He further claims and Texas
concedes that he did accomplish filing with the state
convicting court.
First, Vincent’s recently raised claim that he
attempted to file notice of appeal with the Texas Court of
Criminal Appeals is without merit because it rests upon
facts wholly outside and indeed refuted by the existing
record. The record on appeal simply contains no notice
of appeal whatsoever. And Vincent has produced no
documentary proof that he ever attempted to file notice
in the Court of Criminal Appeals.
Second, filing notice of appeal in the state trial court is
insufficient to comply with former Rule 11(1). Although
the trial court compiles the appellate record with
material pleadings, court documents, a statement of
facts, and briefs of both the defendant and the State, the
trial court does not possess the full record. Its record
does not contain copies of all the appellate proceedings.
For example, motions for rehearing, supplemental
briefs, and pro se briefs -- unlike the opening briefs of
-32-
the parties -- are filed only with the Texas Court of
Criminal Appeals. Tex. Code Crim. Proc. Ann. art.
40.09, secs. 9, 10; Rules 11, 12, Texas Court of Criminal
Appeals, foll. Tex. Code Crim. Proc. Ann. art. 44.33.
Also, it is no small matter that the opinions of the
appeals court are, of course, not contained in the records
of the trial court.
Further, not all documents filed in the trial court are
included in the record on appeal. Under Tex. Code
Crim. Proc. Ann. art. 40.09, sec. 2, the parties file
written designations of those items relevant to the
merits of the appeal, as was done in this case. (A. 35).
Only those items are forwarded to the Texas Court of
Criminal Appeals and, for that matter, to this Court if it
requests the record on appeal.
Vincent notes that under Tex. Code Crim. Proc. Ann.
art. 40.09, sec. 1, the clerk of the trial court is required to
prepare a duplicate copy of the appellate record. He
argues, in an ingenious but sophistical attempt to
circumvent the plain import of this Court’s rules,
“Under a strict reading of the state statute, the original
record remains with the clerk of the trial court and the
copy becomes the appellate record insofar as the state
appeals process is concerned.” (Brief of Appellant at 16-
17). He intimates that because the original copy is filed
with the trial court, he properly filed his notice of appeal
there. This argument is both erroneous and irrelevant.
The relevant portion of art. 40.09, sec. 1, recites as
follows:
The record shall be made in duplicate and one
copy shall be retained by the clerk for use by the
parties with permission of the court.
It is unclear from this statute whether the trial court
should retain the original record and transmit a copy to
the Court of Criminal Appeals, or follew ihe converse
procedure. At least one Texas case, Paulos 7, State, 248
-38-
S.W.2d 928, 930 (Tex.Crim.App. 1952), suggests that
the original record should generally be forwarded to the
Court of Criminal Appeals. In truth, Tex. Code Crim.
Proc. Ann. art. 40.09, sec. 15, provides that either
original or duplicate copies of “papers or exhibits”
should be included in the record on appeal depending
upon the trial and appeal court’s judgment as to the
course of action most appropriate under the
circumstances. In fact, Vincent’s record appears to
include some original and some duplicate items.
In any event, the location of the original trial record is
irrelevant. What is crucial is the location of the appellate
record, whether comprised mainly of original or
duplicate documents. A Texas statute is unequivocal
upon that point:
Upon refusal of the [trial] court to grant
defendant a new trial, the clerk shall thereupon
promptly transmit the record and briefs to the
Court of Criminal Appeals, in which court all
grounds of error and arguments in support
thereof urged in defendant’s brief in the trial
court shall be reviewed, as well as any
unassigned error which in the judgment of the
Court of Criminal Appeals should be reviewed
in the interest of justice. (emphasis added).
Tex. Code Crim. Proc. Ann. art. 40.09, sec. 13. The
statute plainly contemplates transmission of the record
to the Court of Criminal Appeals. Because Vincent has
never filed notice of appeal there, he has failed to file
notice of appeal in the proper Court in a timely fashion.
See Richardson v. Blumenthal, 485 U.S. 939 (1978);
Gabriel v. United States, 429 U.S. 887 (1976); Charger
Investments, Inc. v. Corbett, 429 U.S. 877 (1976); Taggart
v. New York, 392 U.S. 667 (1967). See also R. Stern & E.
Gressman, Supreme Court Practice 509, 516 (5th ed.
1978). The appeal should be dismissed.
-34-
B. Both the Policies underlying Former Sup. Ct.
R. 11(1), 28 U.S.C. (1970), and the Language of
Present Sup. Ct. R. 11(1), 28 U.S.C. (1980),
Evidence an Intent that Notice of Appeals be
Filed with the Deciding State Court of Last
Resort.
This Court’s intent in former Rule 11(1) may be
determined by comparing the relative benefits of giving
notice of appeal to the trial court and to the appeals
court. A trial court ordinarily does not act as a pioneer of
new areas of the law, but is instead bound by
determinations of law set forth by appellate courts. The
trial court’s primary function is to develop facts
properly and to apply those facts to existing law. An
appeals court, however, particularly a court of last
resort in a criminal case, often does pioneer new areas of
law. Because of this aspect of its proper function, such a
court can and does reverse decisions previously made by
the trial court.
Vincent gave notice of appeal to the trial court,
although such notice was futile once the conviction was
final since the trial court could do nothing to reverse the
prior decision. But Vincent might have given proper
notice to the Texas Court of Criminal Appeals at a time
when that court retained a measure of jurisdiction over
the cause.
The present Sup. Ct. R. 11(1), 28 U.S.C. (1980),
supports these interpretions. The Rule now recites that
notice of appeal should be filed with “the court from
whose judgment the appeal is taken.” The clarification
of Rule 11(1) evidences the result this Court intended to
achieve with the old Rule 11(1).
-35-
CONCLUSION
For these reasons, Appellee the State of Texas
respectfully prays that this appeal be dismissed or, in
the alternative, that the judgment of the Texas Court of
Criminal Appeals be affirmed.
Respectfully submitted,
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
W. BARTON BOLING
Assistant Attorney General
Chief, Enforcement Division
DAWN BRUNER
Assistant Attorney General
DOUGLAS M. BECKER
Assistant Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 475-3281
Attorneys for Appellee
; SUPPLEMENT TO THE BRIEF
INDEX TO SUPPLEMENT
AND
STATEMENT OF SOURCES
Item and Source Supplement
Texas Adult Felony Probation Statute in effect
on the date of Appellant Vincent’s Probation
Revocation Fearing, April 10, 1978 ..........cccccccsccees A
(TEX. CRIM. PROC. CODE ANN. art. 42.12
[Vernon 1979 & Supp. 1979])
Incidence of Felony Probation and Revocation
ea Se isaeebbbeccoebes esos B
(1979 Texas Judicial Council Annual Report
at 132 [April, 1980])
(1978 Texas Judicial Council Annual Report
at 143 [May, 1979])
(1977 Texas Judicial Council Annual Report
at 142 [May, 1978])
(1976 Texas Judicial Council Annual Report
at 117 [May, 1977])
(1975 Texas Judicial Council Annual Report
at 121 [1976])
Chart: Comparison of Probation Revocation Procedures
A sss need ede ee besee Kone C
ALABAMA
ALA. CODE §15-22-54 (1977)
Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).
Marlow v. State, 43 Ala. App. 494, 192 So.2d 926
(Ala.Ct.App. 1966)
Dixon v. State, 42 Ala.App. 341, 164 So.2d 509
(Ala.Ct.App. 1964)
ALASKA
ALASKA STAT.§§12.55.085, 12.55.090, 12.55.110
(1979 & Supp. 1979)
* Where information is unknown, a blank appears in the Chart.
Information may be unknown because the statutes and case law of
the jurisdiction are too vague to provide a certain answer; because
the statutes and case law appear to conflict; or because for some
other reason the matter appears unanswerable without reference to
local practice.
ALASKA STAT. §33.05.070 (1975 & Supp. 1979)
Alaska v. Devoe, 560 P.2d 12 (Alas. 1977)
ARIZONA
ARIZ. R. CRIM. PROC. 27.6,.7,.8 (1973 & Supp. 1979)
State v. Smith, 542 P.2d 1115 (Ariz. 1975)
ARKANSAS
ARK. STAT. ANN. §41-1208, 1209 (1977)
Haskins v. State, 264 Ark. 454, 572 S.W.2d 441 (1978)
CALIFORNIA
CAL. PENAL CODE ANN. §1203.2 (West Supp. 1979)
In re Coughlin, 127 Cal.Rptr. 337, 545 P.2d 249
(Cal. 1976)
People v. Coleman, 120 Cal.Rptr. 384, 533 P.2d 1024
(Cal. 1975)
COLORADO
COLO. REV. STAT. §16-11-205,206 (1976)
COLO. R. CRIM. PROC. 32(f) (Supp. 1979)
People v. Wilkerson, 189 Colo. 448, 541 P.2d 896 (1975)
Gehl v. People, 161 Colo. 535, 423 P.2d 332 (1967)
CONNECTICUT
CONN. GEN. STAT. ANN. §53a-32 (1975)
Gentry v. Warden, 167 Conn. 639, 356 A.2d 902 (1975).
DELAWARE
DEL. CODE ANN. tit. 11, §4834 (1979)
Brown v. State, 249:A.2d 269 (Del. 1968).
FLORIDA
FLA. STAT. ANN. §§948.06, 949,10., .1] (West 1973)
Bernhardt v. State, 288 So.2d 490 (Fla. 1974)
State v. Griffith, 331 So.2d 313 (Fla. 1976)
Van Cleaf v. State, 328 So.2d 568 (Fla.Ct.App. 1976)
GEORGIA
GA. CODE ANN. §27-2713 (1978)
Dean v. State, 151 Ga.App. 847, 261 S.E.2d 759
(Ga.Ct.App. 1979)
Elkins v. State, 147 Ga.App. 793, 250 S.E.2d 535
(Ga.Ct.App. 1978)
Ware v. State, 137 Ga.App. 673, 224 S.E.2d 873
(Ga.Ct.App. 1976)
HAWAII
HAWAII REV. STAT. §706-626,627,628 (1976
& Supp. 1979)
IDAHO
IDAHO CODE §20-222, 227 (1979 & Supp. 1980)
ILLINOIS
ILL. REV. STAT. ch. 38, §1005-6-4 (Smith-Hurd
Supp. 1980)
People v. Palmer, 74 Ill. App. 130, 392 N.E.2d 781
(Ill.Ct.App. 1979)
People v. Monick, 51 Ill.App. 783, 367 N.E.2d 225
(Ill.Ct.App. 1977)
People v. Dowery, 62 111.2d 200, 340 N.E.2d 529 (1975)
INDIANA
INDIANA CODE ANN. 35-7-2-2 (Burns 1979)
Curtis v. State, 370 N.E.2d 385 (Ind.Ct.App. 1977)
IOWA
IOWA CODE ANN. §908.1,.2,.11 (West 1979)
KANSAS
KAN.STAT.ANN §22-3716 (1974)
State v. Rasler, 216 Kan. 292, 532 P.2d 1077 (1975)
State v. DeCourey, 224 Kan. 278, 580 P.2d 81 (1978)
KENTUCKY
KY.REV.STATE.§533.050 (1975)
Murphy v. Commonwealth, 551 S.W.2d 838
(Ky.Ct.App. 1977)
Hord v. Commonwealth, 450 S.W.2d 530
(Ky.Ct.App. 1970)
LOUISIANA
LA. CODE CRIM. PRO. ANN. art. 899, 900
(West 1967 & Supp. 1980)
State v. Lassai, 366 So.2d 1389 (La. 1978)
State v. Moore, 295 So.2d 161 (La. 1974)
MAINE
ME. REV. STAT. ANN. tit. 17A, §§1205, 05-A, 06 (1979)
State v. Sommer, 388 A.2d 110 (Me. 1978)
MARYLAND
MD. ANN. CODE art. 27, §641 (Supp. 1979)
Bartlett v. State, 15 Md.App. 234, 289 A.2d 843
(Md.Ct.Spec.App. 1972)
Edwardson v. State, 220 Md. 82, 151 A.2d 132 (1959)
MASSACHUSETTS
MASS. GEN. LAWS ANN. ch. 279, §3 (West Supp. 1980).
MICHIGAN
MICH. COMP. LAWS ANN. §771.4 (1968)
People v. Gladdis, 77 Mich.App. 91, 257 N.W.2d 749
(Mich.Ct.App. 1977)
People v. Miller, 77 Mich.App. 381, 259 N.W.2d 235
(Mich.Ct.App. 1977)
People v. Hardenbrook, 68 Mich.App. 640, 243 N.W.2d 705
(Mich.Ct.App. 1976).
MINNESOTA
MINN.STAT. §609.14 (1978)
Pearson v. State, 308 Minn 287, 241 N.W.2d 490 (1976).
MISSISSIPPI
MISS. CODE ANN. §47-7-37 (1972)
Mason v. Cochran, 46 So.2d 106 (Miss. 1950)
Ray v. State, 229 So.2d 579 (Miss. 1970)
MISSOURI
MO. REV. STAT. §559.036 (1978)
Abel v. Wyrick, 574 S.W.2d 411 (Mo. 1978)
Ewing v. Wyrick, 5385 S.W.2d 442 (Mo. 1976)(en banc)
MONTANA
MONT. REV. CODES ANN. §46-23-1011,12,13 (1979)
NEBRASKA
NEB. REV. STAT. §29-2266, 67, 68 (1975)
State v. Kartman, 192 Neb. 803, 224 N.W.2d 753 (1975)
State v. Clark, 197 Neb. 42, 246 N.W.2d 657 (1976)
NEVADA
NEV. REV. STAT. §§176.215,.216,.217,.221 (1977)
NEW HAMPSHIRE
N.H. REV. STAT. ANN. §504:4 (1979)
NEW JERSEY
N.J. STAT. ANN §2c¢:45-3,4 (West 1980)
State v. Moretti, 50 N.J. Super. 223, 141 A.2d
810 (1958)
State v. Johnson, 133 N.J. Super 457, 337 A.2d 387 (1975)
NEW MEXICO
N.M. STAT. ANN. §§31-21-15 (1978)
State v. Montoya, 93 N.M. 84, 596 P.2d 527
(N.M.Ct.App. 1979)
NEW YORK
N.Y. CRIM. PROC. LAW §410.50,.60,.70 (McKinney
1971 & Supp. 1979)
People v. Jackson, 412 N.Y.S.2d 884, 385 N.E.2d 621
(N.Y.Ct.App. 1978)
People v. Ronald, 302 N.Y.S.2d 260, 249 N.E.2d 882
(N.Y.Ct.App. 1969)
NORTH CAROLINA
N.C. GEN. STAT. §15A - 1343,44,45 (1978 & Supp. 1979)
State v. Waller, 37 N.C.App. 133, 245 S.E.2d 808
(N.C.Ct.App. 1978)
NORTH DAKOTA
N.D. CENT. CODE §12-53-10, 14 (Supp 1979)
N.D. R. Crim. Proc. 32(f) (1974)
State v. Hass, 264 N.W.2d 464 (N.D. 1978)
OHIO
OHIO REV. CODE ANN. §§29-2951 (Page 1975 &
Supp. 1980)
OHIO R. CRIM. PROC. 32.3 (Page 1975).
State v. Miller, 45 Ohio App.2d 301, 345 N.E.2d 82
(Ohio Ct.App. 1975)
OKLAHOMA
OKLA. STAT. tit. 57, §517 (Bupp. 1979)
OKLA STAT. tit. 22, §9916 (Supp. 1979)
Henderson v. State, 568 P.2d 297 (Okla.Crim.App. 1977)
OREGON
OR. REV. STAT. §137.550 (1979)
Perry v. Willard, 247 Or. 145, 427 P.2d 1020 (1967)
PENNSYLVANIA
18 PA. CONS. STAT. ANN. §1371 (Purdon Supp. 1980)
19 PA. CONS. STAT. ANN. §1091 (Purdon 1964)
61 PA. CONS. STAT. ANN. §3831.27 (Purdon 1964)
Commonwealth v. Vasquez, 255 Pa.Super.Ct. 545,
389 A.2d 111 (Pa. Super. Ct. 1978)
Commonwealth v. Young, __— Pa. Super. Ct.___ ,
369 A.2d 741 (Pa.Super.Ct. 1978)
Commonwealth v. Holmes, 248 Pa.Super. Ct. 552,
375 A.2d 379 (Pa.Super.Ct. 1977)
RHODE ISLAND
R.I. GEN. LAWS §12-19-9 (Supp. 1980)
R.I. R. CRIM. PROC. 32(f) (Supp. 1980)
State v. Studtman, __ R.I. __ , 402 A.2d 1185 (1979)
State v. Spratt, ___ RI. ____ , 886 A.2d 1094 (1978)
Stte v. DeLomba, 117 R.I. 673, 370 A.2d 1273 (1977).
SOUTH CAROLINA
S.C. CODE §24-21-450-60 (1977)
SOUTH DAKOTA
S.D. CODIFIED LAWS ANN. §23A-27-20,21 (1979)
State v. Johnson, 87 S.D. 43, 202 N.W.2d 132 (1972)
TENNESSEE
TENN. CODE ANN. §40-2907 (Supp. 1979)
Ray v. State, ___ Tenn. ____ , 576 S.W.2d 598
(Tenn.Crim.App. 1978)
TEXAS
TEX. CRIM. PROC. CODE ANN. art. 42.12. §3,8
(Vernon 1979 & Supp. 1979)
Whisenant v. State, 557 S.W.2d 102 (Tex.Crim.App. 1977)
Tamez v. State, 5384 S.W.2d 686 (Tex.Crim.App. 1976)
Creeks v. State, 542 S.W.2d 849 (Tex.Crim.App. 1976)
Ex parte Shivers, 501 S.W.2d 898 (Tex.Crim.App. 1973)
UTAH
UTAH CODE ANN. §77-62-37 (1978)
UTAH CODE CRIM. PROC. §77-27-27 (Supp. 1980)
VERMONT
VT. STAT. ANN. tit. 28, §301, 301, 304 (Supp. 1979)
VIRGINIA
VA. CODE §19.2-306 (Supp. 1980)
Brown v. Slayton, 337 F.Supp. 10 (W.D.Va. 1971)
Cook v. Commonwealth, 211 Va. 290, 176 S.E.2d 815 (1970)
WASHINGTON
WASH. REV. CODE §9.95.220,.230 (1974)
State v. Grimm, 17 Wash.App. 633, 564 P.2d 839
(Wash.Ct.App. 1977)
Matter of Wentworth, 17 Wash.App. 644, 564 P.2d 644
(Wash.Ct.App. 1977)
WEST VIRGINIA
W.VA. CODE §62-12-10 (1977)
Lark v. Haynes, 223 S.E.2d 780 (W.Va. 1976)
WISCONSIN
WIS. STAT. ANN. §973.10 (West Supp. 1980)
Plotkin v. Dept. of Health, 63 Wis.2d 535,
217 N.W.2d 641 (1974)
Cresci v. Schmidt, 62 Wisc.2d 400, 215 N.W.2d 367 (1974)
WYOMING
WYO. STAT. §7-13-304,409 (1977)
WYO. R. CRIM. PROC. 33(f) (1977)
SUPPLEMENT A
Tex. Code Crim. Proc. Ann. art. 42.12
(Vernon 1979 & Supp. 1979)
Art. 42.12.
Adult Probation, Parole, and Mandatory
Supervision Law
A. Purpose of Article and Definitions
Section 1. It is the purpose of this Article to place
wholly within the State courts of appropriate
jurisdiction the responsibility for determining when the
imposition of sentence in certain cases shall be
suspended, the conditions of probation, and the
supervision of probationers, in consonance with the
powers assigned to the judicial branch of this
government by the Constitution of Texas. It is also the
intent of this Article to provide for the release of persons
on parole and for the method thereof, to designate the
Board of Pardons and Paroles as the responsible
agency of State government to recommend
determination of paroles and to further designate the
Board of Pardons and Paroles as responsible for the
investigation and supervision of persons released on
parole. It is the intent of this Article to aid all prisoners
to readjust to society upon completion of their period of
incarceration by providing a program of mandatory
supervision for those prisoners not relased on parole or
through executive clemency and to designate the Board
of Pardons and Paroles as the agency of government
responsible for the program. It is the final purpose of
this Article to remove from existing statutes the
limitations, other than questions of constitutionality,
that have acted as barriers to effective systems of
probations and paroles in the public interest.
Sec. 2. This Article may be cited as the “Adult
Probation, Parole, and Mandatory Supervision Law”.
Unless the context otherwise requires, the following
definitions shall apply to the specified words and
phrases as used in this Article:
a. “Courts” shall mean the courts of record having
original criminal jurisdiction;
b. “Probation” shall mean the release of a convicted
defendant by a court under conditions imposed by the
court for a specified period during which the imposition
of sentence is suspended;
c. “Parole” shall mean the release of a prisoner from
imprisonment but not from the legal custody of the
State, for rehabilitation outside of prison walls under
such conditions and provisions for disciplinary
supervision as the Board of Pardons and Paroles may
determine. Parole shall not be construed to mean a
commutation of sentence or any other form of executive
clemency;
d. “Mandatory supervision” shall mean the release
of a prisoner from imprisonment but not on parole and
not from the legal custody of the State, for rehabilitation
outside of prison walls under such conditions and
provisions for disciplinary supervision as the Board of
Pardons and Paroles may determine. Mandatory
supervision may not be construed as a commutation of
sentence or any other form of executive clemency;
e. “Probation officer” shall mean either a person
duly appointed by one or more courts of record having
original criminal jurisdiction, to supervise defendants
placed on probation; or a person designated by such
courts for such duties on a part-time basis;
f. “Parole officer” shall mean a person duly
appointed by the Director of the Division of Parole
Supervision and assigned the duties of investigating
and supervising paroled prisoners and prisoners
released to mandatory supervision to see that the
conditions of parole or mandatory supervision are
complied with;
g. “Board” shall mean the Board of Pardons and
Paroles;
h. “Division” shall mean the Division of Parole
Supervision of the Board of Pardons and Paroles; and
i. “Director” shall mean the Director of the Division
of Parole Supervision.
B. Probations
Sec. 3. The judges of the courts of the State of Texas
having original jurisdiction of criminal actions, when it
shall appear to the satisfaction of the court that the ends
of justice and the best interests of the public as well as
the defendant wil! be subserved thereby, shall have the
power, after conviction or a plea of guilty for any crime
or offense, where the maximum punishment assessed
against the defendant does not exceed ten years
imprisonment, to suspend the imposition of the sentence
and may place the defendant on probation or impose a
fine applicable to the offense committed and also place
the defendant on probation as hereinafter provided. In
all cases where the punishment is assessed by the Court
it may fix the period of probation without regard to the
term of punishment assessed, but in no event may the
period of probation be greater than 10 years or less than
the minimum prescribed for the offense for which the
defendant was convicted. Any such person placed on
probation, whether in a trial by jury or before the court,
shall be under the supervision of such court.
Sec. 3a. Where there is a conviction in any court of
this State and the punishment assessed by the jury shall
not exceed ten years, the jury may recommend
probation for a period of any term of years authorized
for the offense for which the defendant was convicted,
but in no event for more than ten years, upon written
sworn motion made therefor by the defendant, filed
before the trial begins. When the jury recommends
probation, it may also assess a find applicable to the
offense for which the defendant was convicted. When
the trial is to a jury, and the defendant has no counsel,
the court shall inform the defendant of his right to make
such motion, and the court shall appoint counsel to
prepare and present same, if desired by the defendant.
In no case shall probation be recommended by the jury
except when the sworn motion and proof shall show, and
the jury shall find in their verdict that the defendant has
never before been convicted of a felony in this or any
other State. This law is not to be construed as preventing
the jury from passing on the guilt of the defendant, but
he may enter a plea of not guilty. In all eligible cases,
probation shall be granted by the court, if the jury
recommends it in their verdict, for the period
recommended by the jury.
If probation is granted by the jury the court may
impose only those conditions which are set forth in
Section 6 hereof.
Sec. 3b. Where probation is recommended by the
verdict of a jury as provided for in Sec. 3a above, a
defendant’s probation shall not be revoked during his
good behavior, so long as he is within the jurisdiction of
the court and his residence is known, except in
accordance with the provisions of Sec. 8 of this Article.
If such a defendant has no counsel, it shall be the duty of
the court to inform him of his right to show any cause
why his probation should not be revoked; and if such a
defendant requests such right, the court shall appoint
counsel in accordance with Articles 26.04 and 26.05 of
this Code to prepare and present the same; and in all
other respects the procedure set forth in said Sec. 8 of
this Article shall be followed.
Sec. 3c. Nothing herein shall limit the power of the
court to grant a probation of sentence regardless of the
recommendation of the jury or prior conviction of the
defendant.
Sec. 8d. (a) When in its opinion the best interest of
society and the defendant will be served, the court may,
after receiving a plea of guilty or plea of nolo
contendere, hearing the evidence, and finding that it
substantiates the defendant’s guilt, defer further
proceedings without entering an adjudication of guilt,
and place the defendant on probation on reasonable
terms and conditions as the court may require and for a
period as the court may precribe not to exceed 10 years.
However, upon written motion of the defendant
requesting final adjudication filed within 30 days after
entering such plea and the deferment of adjudication,
the court shall proceed to final adjudication as in all
other cases.
(b) On violation of a condition of probation imposed
under Subsection (a) of this section, the defendant may
be arrested and detained as provided in Section 8 of this
Article. 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. After an
adjudication of guilt, all proceedings, including
assessment of punishment, pronouncement of sentence,
granting of probation, and defendant’s appeal continue
as if the adjudication of guilt had not been deferred.
(c) On expiration of a probationary period imposed
under Subsection (a) of this section, if the court has not
proceeded to adjudication of guilt, the court shall
dismiss the proceedings against the defendant and
discharge him. The court may dismiss the proceedings
and discharge the defendant prior to the expiration of
the term of probation if in its opinion the best interest of
society and the defendant will be served. A dismissal
and discharge under this section may not be deemed a
conviction for the purposes of disqualifications or
disabilities imposed by law for conviction of an offense,
except that upon conviction of a subsequent offense, the
fact that the defendant had previously received
probation shall be admissible before the court or jury to
be considered on the issue of penalty.
Sec. 3e. (a) For the purposes of this section, the
jurisdiction of the courts in this state in which asentence
requiring confinement in the Texas Department of
Corrections is imposed for conviction of a felony shall
continue for 120 days from the date the execution of the
sentence actually begins. After the expiration of 60 days
but prior to the expiration of 120 days from the date the
execution of the sentence actually begins, the judge of
the court that imposed such sentence may, on his own
motion or on written motion of the defendant, suspend
further execution of the sentence imposed and place the
defendant on probation under the terms and conditions
of this article, if such sentence is otherwise eligible for
probation under this article and prior to the execution of
such sentence, the defendant had never been
incarcerated in a penitentiary serving a sentence for a
felony and in the opinion of the judge the defendant
would not benefit from further incarceration in a
penitentiary. Probation may be granted under this
section only if the offense for which the defendant was
sentenced was an offense other than criminal homicide,
rape, or robbery.
(b) When the defendant files a written motion
requesting suspension by the court of further execution
of the sentence and placement on probation, or when
requested to do so by the judge, the clerk of the court
shall request a copy of the defendant’s record while
incarcerated from the Texas Department of
Corrections. Upon receipt of such request, the Texas
Department of Corrections shall forward to the court, as
soon as possible, a full and complete copy of the
defendant’s record while incarcerated.
Sec. 3f. (a) The provisions of Sections 3 and 3c of
this Article do not apply:
(1) to a defendant adjudged guilty of an offense
defined by the following sections of the Penal Code:
(A) Section 19.03 (Capital murder);
(B) Section 20.04 (Aggravated kidnapping);
(C) Section 21.03 (Aggravated rape);
(D) Section 21.05 (Aggravated sexual abuse);
(E) Section 29.03 (Aggravated robbery); or
(2) to a defendant when it is shown that the
defendant used or exhibited a deadly weapon as defined
in Section 1.07(a)(11), Penal Code, during the
commission of a felony offense or during immediate
flight therefrom. Upon affirmative finding that the
defendant used or exhibited a deadly weapon during the
commission of an offense or during immediate flight
therefrom, the trial court shall enter the finding in the
judgment of the court. Upon a affirmative finding that
the deadly weapon the defendant used or exhibited was
a firearm, the court shall enter that finding in its
judgment.
(b) If there is an affirmative finding that the
defendant convicted of a felony of the second degree or
higher used or exhibited a firearm during the
commission or flight from commission of the offense and
the defendant is granted probation, the court may
order the defendant confined in the Texas Department
of Corrections for not less than 60 and not more than 120
days. At any time after the defendant has served 60 days
in the custody of the Department of Corrections, the
sentencing judge, on his own motion or on motion of the
defendant, may order the defendant released to
probation. The Department of Corrections shall release
the defendant to probation after he has served 120 days.
Sec. 4. When directed by the court, a probation
officer shall fully investigate and report to the court in
writing the circumstances of the offense, criminal
record, social history and present condition of the
defendant. Whenever practicable, such investigation
shail include a physical and mental examination of the
defendant. Defendant, if not represented by counsel,
counsel for defendant and counsel for the state shall be
afforded an opportunity to see a copy of the report upon
request. If a defendant is committed to any institution
the probation officer shall send a report of such
investigation to the institution at the time of
commitment.
Sec. 5. Only the court in which the defendant was
tried may grant probation, fix or alter conditions,
revoke the probation, or discharge the defendant, unless
the court has transferred jurisdiction of the case to
another court with the latter’s consent. After a
defendant has been placed on probation, jurisdiction of
the case may be transferred to a court of the same rank
in this State having geographical jurisdiction where the
defendant is residing or where a violation of the
conditions of probation occurs. Upon transfer, the clerk
of the court of original jurisdiction shall forward a
transcript of such portions of the record as the
transferring judge shall direct to the court accepting
jurisdiction, which latter court shall thereafter proceed
as if the trial and conviction had occurred in that court.
Any court having geographical jurisdiction where the
defendant is residing or where a violation of the
conditions of probation occurs may issue a warrant for
his arrest, but the determination of action to be taken
after arrest shall be only by the court having
jurisdiction of the case at the time the action is taken.
Sec.6. The court having jurisdiction of the case shall
determine the terms and conditions of probation and
may, at any time, during the period of probation alter or
modify the conditions; provided, however, that the clerk
of the court shall furnish a copy of such terms and
conditions to the probationer, and shall note the date of
delivery of such copy on the docket. Terms and
conditions of probation may include, but shall not be
limited to, the conditions that the probationer shall:
a. Commit no offense against the laws of this State or
of any other State or of the United States;
b. Avoid injurious or vicious habits;
ec. Avoid persons or places of disreputable or
harmful character;
d. Report to the probation officer as directed;
e. Permit the probation officer to visit him at his
home or elsewhere;
f. Work faithfully at suitable employment as far as
possible;
g. Remain within a specified place;
h. Pay his fine, if one be assessed, and all court costs
whether a fine be assessed or not, in one or several sums,
and make restitution or reparation in any sum that the
court shall determine;
i. Support his dependents;
j. Participate in any community-based program;
j. Reimburse the county in which the prosecution
was instituted for compensation paid to appointed
counsel for defending him in the case, if counsel was
appointed.
k. Remain under cutodial supervision in a
community-based facility, obey all rules and
regulations of such facility, and pay a percentage of his
income to the facility for room and board;
l. Pay a percentage of his income to his dependents
for their support while under custodial suspension in a
community-based facility; and
m. Pay a percentage of his income to the victim of
the offense, if any, to compensate the victim for any
property damage or medical expenses sustained by the
victim as a direct result of the commission of the offense.
Sec. 6a. (a) A court granting probation may fix a
fee not exceeding $15 per month to be paid to the court
by the probationer during the probationary period. The
court may make payment of the fee a condition of
granting or continuing the probation.
(b) The court shall distribute the fees received under
Subsection (a) of this section to the county or counties in
which the court has jurisdiction for use in administering
the probation laws. In instances where a district court
has jurisdiction in two or more counties, the court shall
distribute the fees received to the counties in proportion
to population as prescribed by Paragraph 7, Section 10
of this Article.
Sec. 6b. (a) When the court having jurisdiction of
the case grants probation to the defendant, in addition to
the conditions imposed under Section 6 of this article,
the court may require as a condition of probation that
the defendant submit to a period of detention in a penal
institution to serve a term of imprisonment not to exceed
30 days or one-third of the sentence whichever is lesser.
(b) The imprisonment imposed shall be treated as a
condition of probation, and in the event of a sentence of
imprisonment upon the revocation of probation, the
term of imprisonment served hereunder shall be
credited toward service of such subsequent
imprisonment.
Sec. 7. At any time, after the defendant has
satisfactorily completed one-third of the original
probationary period or two years of probation,
whichever is the lesser, the period of probation may be
reduced or terminated by the court. Upon the
satisfactory fulfillment of the conditions of probation,
and the expiration of the period of probation, the court,
by order duly entered, shall amend or modify the
original sentence imposed, if necessary, to conform to
the probation period and shall discharge the defendant.
In case the defendant has been convicted or has entered
a plea of guilty or a plea of nolo contendere, and the court
has discharged the defendant hereunder, such court
may set aside the verdict or permit the defendant to
_ withdraw his plea, and shall dismiss the accusation,
complaint, information or indictment against such
defendant, who shall thereafter be released from all
penalties and disabilities resulting from the offense or
crime of which he has been convicted or to which he has
pleaded guilty, except that proof of his said conviction or
plea of guilty shall be made known to the court should
the defendant again be convicted of any criminal
offense.
Sec. 8. (a) At any time during the period of
probation the court may issue a warrant for violation of
any of the conditions of the probation and cause the
defendant to be arrested. Any probation officer, police
officer or other office with power of arrest may arrest
such defendant without a warrant upon the order of the
judge of such court to be noted on the docket of the court.
A probationer so arrested may be detained in the county
jail or other appropriate place of detention until he can
be taken before the court. Such officer shall forthwith
report such arrest and detention to such court. If the
defendant has not been released on bail, on motion by the
defendant the court shall cause the defendant to be
brought before it for a hearing within 20 days of filing of
said motion, and after a hearing without a jury, may
either continue, modify, or revoke the probation. The
court may continue the hearing for good cause shown by
either the defendant or the state. If probation is revoked,
the court may proceed to dispose of the case as if there
had been no probation, or if it determines that the best
interests of society and the probationer would be served
by a shorter term of imprisonment, reduce the term of
imprisonment originally assessed to any term of
imprisonment not less than the minimum prescribed for
the offense of which the probationer was convicted.
(b) Any probationer who removes himself from the
State of Texas without permission of the court having
jurisdiction of the case, shall be deemed and considered
a fugitive from justice and shall be subject to extradition
as now provided by law. No part of the time that the
defendant is on probation shall be considered as any
part of the time that he shall be sentenced to serve. The
right of the probationer to appeal to the Court of
Criminal Appeals for a review of the trial and
conviction, as provided by law, shall be accorded the
probationer at the time he is placed on probation. When
he is notified that his probation is revoked for violation
of the conditions of probation and he is called on to serve
a sentence in a jail or in an institution operated by the
Department of Corrections, he may appeal the
revocation.
(c) Ina probation revocation hearing at which it is
alleged only that the probationer violated the conditions
of probation by failing to pay probation fees, court costs,
restitution, or reparations, the inability of the
probationer to pay as ordered by the court is an
affirmative defense to revocation, which the
probationer must prove by a preponderance of evidence.
(c) Ina probation revocation hearing at which it is
alleged that the probationer violated the conditions of
probation by failing to pay compensation paid to
appointed counsel, probation fees, court costs,
restitution, or reparations, the inability of the ~
probationer to pay as ordered by the court is an
affirmative defense to revocation, which the
probationer must prove by a preponderance of evidence.
See. 9. If, for good and _ sufficient reasons,
probationers desire to change their residence within the
State, such transfer may be effected by application to |
their supervising probation officer, which transfer shall
be subject to the court’s consent and subject to such
regulations as the court may require in the absence of a
probation officer in the locality to which the probationer
is transferred.
Sec. 10. (a) For the purpose of providing adequate
probation services, the district judge or district judges
having original jurisdiction of criminal actions in each
judicial district in this state shall establish a probation
office and employ, in accordance with standards set by
the commission, district personnel as may be necessary
to conduct presentence investigations, supervise and
rehabilitate probationers, and enforce the terms and
conditions of misdemeanor and felony probation. If two
or more judicial districts serve a county, or a district has
more than one county, one district probation
department shall serve all courts and counties in the
districts.
(b) Where more than one probation officer is
required, the judge or judges shall appoint a chief adult
probation officer or director, who, with their approval,
shall appoint a sufficient number of assistants and other
employees to carry on the professional, clerical, and
other work of the court.
(c) To be eligible for appointment as an adult
probation officer, a person who is not an adult probation
officer on the effective date of this Act:
(1) must have acquired a _ bachelor’s degree
conferred by a college or university accredited by an
accrediting organization recognized by the
Coordinating Board, Texas College and University
System; and
(A) one year of graduate study in criminology,
corrections, counseling, law, social work, psychlogy,
sociology, or a related field that has been approved by
the Texas Adult Probation Commission; or
(B) one year of experience in full-time case work,
counseling, or community or group work in a social,
community, corrections, or juvenile agency that deals
with offenders or disadvantaged persons that has been
approved by the Texas Adult Probation Commission;
and
(2) must not be otherwise disqualified by Section 31
of this article.
(d) The same person serving as a probation officer
for juveniles may not be required to serve as a probation
officer for adults and vice versa.
(e) Probation officers shall be furnished
transportation or, alternatively, shall be entitled to an
automobile allowance for use of personal automobile on
official business.
(f) Personnel of the respective district probation
departments shall not be deemed state employees and
the responsible judge or judges of a district probation
department shall negotiate a contract with the most
populous county within the judicial district for all
district probation department staff to participate in
that county’s group insurance program; retirement
plan; and personnel policies with regard to vacation
credit, sick leave credit, holiday schedule, credit union,
jury leave, military leave, etc. It shall be the
responsibility of the county or counties comprising the
judicial district or geographical area served by such
district probation department to provide physical
facilities, equipment, and utilities for an effective and
professional adult probation and adult community-
based correctional service.
(g) Where a judicial district has criminal
jurisdiction in two or more counties, those counties may
enter into agreement that the total expenses of such
facilities, equipment, and utilities to be distributed
approximately in the same proportion as the population
in each county bears to the total population of all those
counties, according to the last preceding or any future
federal census.
(h) The salaries of personnel, and other expenses
essential to the adequate supervision of probationers,
shall be paid from the funds of the judicial district. In all
the instances of employment of probation officers, the
responsible judges are authorized to accept state-aid,
grants or gifts from other political subdivisions of the
state or associations and foundations, for the sole
purpose of financing adequate and effective
probationary programs and community-based
correctional facilities other than jails or prisons in the
- various parts of the district. For the purposes of this Act,
the municipalities of this state are specifically
authorized to grant and allocate such sums of money as
their respective governing bodies may approve to their
appropriate county governments for the support and
maintenance of effective programs. All grants, gifts,
and allocations of the character and purpose described
in this section shall be handled and accounted for
separately from other public funds of the county.
Sec. 11. For the purpose of determining when fees
are to be paid to any officer or officers, the placing of the
defendant on probation shall be considered a final
disposition of the case, without the necessity of waiting
for the termination of the period of probation or
suspension of sentence.
Sec. lla. The provisions of Sections 6a, 10, and 11 of
this Article also apply to Article 42.13.
SUPPLEMENT B
Incidence of Felony Probation and Revocation
in Texas, 1975 - 1979
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SUPPLEMENT C
Cross-Jurisdictional Comparison of
Probation Revocation Procedures
State
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Judicial Arrest solely Flexibility in Preliminary
Revocation upon warrant sentencing at
Procedure? (or equivalent
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Yes
Yes
Yes
Yes
Yes
prior judicial
determination
of probable
cause prior to
arrest)
No
No
Yes
Yes
Yes
Yes
No
No
No
revocation
hearing?
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Yes
Yes
Yes
No
Yes
Yes
Yes
Yes
No
Yes
Yes
Yes
hearing
invariably
required,
absent waiver,
to determine
probable
cause?
No
No
No
No
No
No
Yes
Yes
No
Probably
No
No
Per Se Right Protection Statutory Protection Discretionary
to Counsel? from right to from coerced or mandatory
improper revocation confession? right to bail?
search and hearing
seizure? within
specific time?
No No Yes
Yes No
Yes No
Yes Yes Yes
Yes No No
No Yes Yes
Yes No Yes
No Yes
No No No No Yes
No No No No Yes
Yes Yes
Yes No Yes No Yes
Yes Yes
Yes Yes
Yes No Yes
Yes No
Yes No No Yes
Yes Yes
Yes
Yes Yes No
Yes
No
No No Yes
No
State
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Judicial
Revocation upon warrant sentencing at
Arrest solely Flexibility in Preliminary
Procedure? (or equivalent
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Prebably
prior judicial
determination
of probable
cause prior to
arrest)
Yes
No
Yes
No
No
No
No
revocation
hearing?
Yes
No
Yes
Yes
Yes
Yes
Yes
No
Yes
Yes
Yes
Yes
Yes
No
hearing
invariably
required,
absent waiver,
to determine
probable
cause?
Yes
Yes
Yes
Probably
No
Probably
Yes
No
No
Yes
Yes
Per se Right Protection Statutory Protection Discretionary
to Counsel? from right to fromcoerced or mandatory
improper revocation confession? right to bail?
search and hearing
seizure? within
specific time?
Yes No
Yes Yes
Yes No Yes
Yes
Yes No No No Yes
Yes Yes
Yes
Yes Yes
Yes Yes
Yes
No
No Yes
Yes
No Yes
a Yes No
Yes Yes Yes Yes Yes
Yes Probably Not Yes Yes
Yes
Yes
Probably No
Yes
No
Yes No Yes
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.