Is a Def. entitled to make bail when arrested on a Misdemeanor motion to revoke probation(not a deferred adj)? All I can find is old case law that suggests that he is entitled to bail. Not the answer I wanted. Any help would be appreciated.
I believe the section you refer to is 42.12 (21) but I could not tell if that helped or hurt because it says "...if the defendant has not been released on bail...." I am told we were one of the few jurisdictions in the state to allow bond on misd. MTRs. The judge stopped that a few months ago and this is the first complaint I've had since the new "policy" went into effect. As I said earlier, the cases I could find are from the early 70's that held bail was permissible....but those decisions were based on a prior CCP provision that said a misd. conviction was not final when the sentence was probated. Best I can tell, that section was repealed in 1995. I feel confident if most other jurisdictions are not allowing bail on misd. revocations that there is a way to deny bail, I just can't put my finger on it. Such is always the case when you need it immediately. Any help? Thanks
Section 21 contains the following sentence: "A defendant so arrested may be detained in the county jail or other appropriate place of confinement until he can be taken before the judge." So far as I know this applies to warrants relating to supervision for a felony or misdemeanor offense and is the provision generally interpreted to permit the court to deny bail. Although Jones, 460 SW2d 428 and Ainsworth, 532 SW2d 640 each involved felonies, there is no reason to believe this section fails to give discretion to a judge to deny bail where only a misdemeanor was originally charged. You are correct that a prior deferred adjudication order will not permit one to be held without bail-misdemeanor or felony. Laday, 594 SW2d at 104. But, you are also correct that Judge Douglas says "The reasons for holding a probationer in jail pending a revocation hearing in a misdemeanor case are not as compelling as those in a felony case," and thus appears to state this provision cannot apply with respect to misdemeanors. Smith,493 S.W.2d 958. So, I guess Smith applies, for now.
[This message was edited by Martin Peterson on 11-30-04 at .]
CRUD!!!! Still not the answer I wanted. Curious what other jurisdictions are doing with their Misd. revocations...is bail being taken? My Sheriff tells me that most other jurisdictions do not allow bail on misd. revocation warrants that are servred in our county. Any thoughts? Thanks for the thoughts so far.
Mike, you're not the only county. Our County Judge lets all Misd MTR people out on bond. Perhaps the reason is we have a small jail and they don't want to feed them. I also just asked our distict judge and he said, as a former county attorney, that he thought they were entitled to bond out. It'll be interesting to read the final conclusion!
At this point, I am not going to object to bail being set in my particular case until I can get a better understanding of what we can and can't do... If there are jurisdictions that don't allow bail on misd. revocations please let us know and any basis you have for that position would be appreciated. Mike Hartman Scurry County Attorney firstname.lastname@example.org
We do not allow bail - as a general rule - in either felony or misdemeanor MTRs. Both the district judge and CCL judge use the aforementioned rationales to claim that they can hold them for 20 days before holding a bond hearing. If no hearing is "propertly" requested, no bond is set. NOrmally, we have gotten the revocation to court long before the 20 days are out.
Thanks Lisa! That is about all I can find to support the position to hold the Def. without bail as well. The defense Atty claims that the Smith case has never been reversed and therefore is still good law. I went ahead and asked the judge to set bail until I could further research the issue. Perhaps I can poll some other jurisdictions at the elected's conference in Austin next week. I'm surprised there has not been a more recent case in this area if there are several or many jurisdictions denying bail.
In the context of straight probation following a felony conviction, I think it is clear that a defendant is not entitled to bail. In Ex Parte Harris, the CCA denied sentence credit for confinement pending a revocation hearing because the defendant "was not entitled to post bond" pending the hearing on the MTR. (That holding has been limited for reasons unrelated to the conclusory statement by the court that defendant was not entitled to bail.)
As for misdemeanor cases, the answer is less clear. Dix and Dawson pose the same question in Texas Criminal Practice and Procedure (pasted at the end of this document), but can't answer it. Smith clearly applied before straight probation was an option in misdemeanor cases, but its logic fails where a defendant is on probation following an adjudication of guilt. The dicta--it's unfair to keep a defendant in jail on a MTR for longer than his eventual sentence will be--is still relevant; however, the Harris dicta--defendant is not entitled to bond pending a revocation hearing--contradicts that.
So, I think you have a really good argument that your judge can lawfully deny bail pending a revocation hearing in all cases. If the defendant moves for bail, the judge might have to decide whether denial of bail would subject the defendant to a longer period of confinement than he will get if revoked (perhaps weighing the allegations in the MTR and the possible sentence). However, now your bail motion is starting to sound like a mini revocation hearing--I'd guess that plenty of judges would err on the defendant's side rather than have two revocation hearings.
Quote from Harris: "Applicant was also in custody from January 30, 1995, to February 16, 1995, as a condition of his probation. In addition, he was in custody from July 6, 1995, to September 22, 1995, pursuant to the State's motion to revoke his probation. He also seeks credit for both of these time periods. However, a defendant is not entitled to post bond when he is in custody as a condition of probation or pursuant to a State's motion to revoke." Ex Parte Harris, 946 S.W.2d 79, 81 (Tex. Crim. App. 1997).
Criminal Practice And Procedure George E. Dix FNa , Robert O. Dawson FNb
Chapter 40. Community Supervision--Revocation And Discharge B. Initiating The Proceedings
40.16 Bail--Misdemeanor Community Supervision
Prior to the 1979 amendments in the misdemeanor community supervision statute, all misdemeanor community supervisions were in form deferred adjudication community supervision. Interpreting the pre-1979 statute, FN1 the Court of Criminal Appeals has held that one on misdemeanor community supervision who is detained for a violation is entitled to have bail set because he or she has not yet been convicted. FN2
The 1979 amendments made misdemeanor regular community supervision just like felony regular community supervision in the sense that both types of defendants are convicted before being placed on community supervision. FN3 Has that changed the previous rule that misdemeanor defendants have a right to have bail set when detained on a motion to revoke?
The Court of Criminal Appeals suggested that there is not as great a need for detention of a defendant charged with a violation in a misdemeanor case as in a felony case, The reasons for holding a defendant in jail pending a revocation hearing in a misdemeanor case are not as compelling as those in a felony case. * * * Ordinarily, those charged with misdemeanors do not present the threat to people and property as those charged with felonies. The need for their detention is not so great. In some instances one could be detained pending a hearing [on a motion to revoke misdemeanor community supervision] for a longer period than his term of probation. FN4
However, the question must still be regarded as an open one.
FNa A. W. Walker Centennial Chair In Law, University Of Texas School Of Law.
FNb Bryant Smith Chair In Law, University Of Texas School Of Law.
FN1 Vernon's Ann. C. Cr. P. art. 42.13, � 4(a) (repealed) provided in part, "When a defendant is granted probation under the terms of this Act, the finding of guilt does not become final, nor may the court render judgment thereon. * * * "
FN2 Ex parte Smith, 493 S.W.2d 958 (Tex.Crim.App.1973).
FN3 Vernon's Ann. C. Cr. P. art. 42.12, �� 3, 4(a).
FN4 Ex parte Smith, 493 S.W.2d 958, 959 (Tex.Crim.App.1973).