Does a judge need to approve Pre-Trial Diversion/Intervention Agreements? It seems that the agreements are contracts solely between the prosecutors and the defendants that would not require court approval.

I have attempted to find agreements from other Texas counties. Some counties require a defendant to enter a plea in order to be accepted into pre-trial diversion. In those situations, the judge signs the agreement.

If a defendant is not entering a plea as a condition of pre-trial diversion, and the pre-trial diversion agreement is a separate document not pursuant to a plea agreement, does a judge need to approve the pre-trial diversion? Thanks!

Generally, court approval is not required for an actual pre-trial diversion/intervention agreement. However, especially in misdemeanor cases in a constitutional county court, where the judge of the court also has significant influence in budgeting, you may want to consult with the judge to determine their preference. If an information has already been filed, then you may also want to consider seeking judicial approval since you will ultimately be filing a motion to dismiss the case (if defendant successfully completes the pre-trial program), and you will need the signature of the judge at that point.

Thank you for your thorough response.

I believe a judge must approve an application for pre trial diversion if supervision fees are to be charged pursuant to a 2005 amendment as follows:
SECTION 2. Article 102.012, Code of Criminal Procedure, is
amended to read as follows:
Art. 102.012. FEES FOR PRETRIAL INTERVENTION PROGRAMS.
(a) A court that authorizes a defendant to participate [person] in
a pretrial intervention program established under Section 76.011,
Government Code, may order the defendant to pay to the court [be
assessed] a supervision fee in an amount not more than $60 per month
as a condition of participating in the program.
(b) In addition to or in lieu of the supervision fee
authorized by Subsection (a), the court may order the defendant to
pay or reimburse [that equals the actual cost to] a community
supervision and corrections department for any other expense
incurred as a result of the defendant's participation in the
pretrial intervention program or that is necessary to the
defendant's successful completion of the program[, not to exceed
$500, for supervision of the defendant by the department or
programs provided to the defendant by the department as part of the
pretrial intervention program].

Thank you for pointing that out, Ken. Your thoughts are in line with the TDCAA pre-trial diversion sample forms at https://www.tdcaa.com/sites/de...r/sample%20forms.doc which begin with an authorization for the judge to sign.

CCP 102.012(a) does not seem to address a situation like the one that Larry mentioned above: when a pre-trial diversion begins before an information has been filed. Read broadly, I suppose the statute would still require court approval (even before an information has been filed) if we desired supervision fees.

I think you need to file the case to give the court the authority to assess the fees. Otherwise, how would the clerk file the order?

Check out HB 351 effective September 1, 2017., If I have read it correctly, it will authorize a judge to place a person being supervised on pretrial intervention in a community correctional facility including the following: a restitution center; a court residential treatment facility; a substance abuse treatment facility; a custody facility or boot camp; a facility for an offender with a mental impairment, and an intermediate sanction facility.
This change may make pretrial diversion a lot more palatable to prosecutors.

The way HB 351 reads (broadening court authority in pretrial intervention) is also suggestive of court approval being required for such programs. Otherwise, the new language has little impact.

Good point about filing the order. The sample form I linked to above appears to circumvent that. It authorizes, generally, the probation department to supervise "persons who have received court approval to participate in pretrial intervention programs" and states "[t]he clerk shall file this order in the general minutes of this court."

That gets back to my original question of whether court approval is required for pre-trial diversion. The sample language above requires court approval so it seems that, even if a pre-trial diversion agreement was signed before the case was filed, court approval would still be required to grant supervision fees.

There are TWO types of pretrial diversion. You can all them formal and informal for ease of use.

Formal pretrial interventions in which the offender is supervised by the local CSCD and assessed fees, etc., usually require the approval of the court, especially if the person is going to be confined in certain facilities as a condition of the pretrial program. Furthermore, any specialty court diversion is going to require court buy-in as well.

However, informal pretrial diversions that do not involve active supervision or the collecting of fees, etc., do not require court approval (although you might need the court's tacit consent if the case has already been filed and you need it set off for several months.)

The formal program is increasingly becoming the norm, but that doesn't mean "pocket probation," "deferred prosecution," or other informal types diversion have been abolished.