We've gotten several enquiries from counsel about procedures to revoke probation where the defendant is incarcerated in another state, suggesting a procedure whereby the defendant waives appearance and other rights and Texas court revokes. These deals apparently involve some agreement to run the revoked sentence concurrent with the out of state or Fed. sentence. Anyone have any experience or thoughts on this?
Posts: 4 | Location: Nacogdoches, Tx, USA | Registered: December 23, 2003
CCP Art. 42.12, sec. 21(b), makes mention that "A judge may revoke the community supervision of a defendant who is imprisoned in a penal institution without a hearing if the defendant in writing before a court of record in the jurisdiction where imprisoned waives his right to a hearing and to counsel, affirms that he has nothing to say as to why sentence should not be pronounced against him, and requestes the judge to revoke community supervision and to pronounce sentence. "
SOOO, to make a long story short, it looks like you (or more realistically, the defense attorney) is going to have to find some court of record in this other jurisdiction and bring him down to one of their judges, where I suppose he'd have to be admonished (using Texas law) as to his rights and then have BOTH a written and oral (recorded) waiver of all rights.
As for how the sentence is run, I think that question is probably largely dependent on whether the defendant was on straight (or 'judicial') probation or deferred adjudication.
If straight, then the defendant's sentence, I'm surmising, would have to be concurrent because the adjudication and determination of sentence was made by the court at the time of his plea (or trial) in your jurisdiction.
As usual, if its deferred, then the judge would presumably have the full range of options open to him.
Of course, good luck in actually convincing two judges in two different jurisdictions to go along with this nonsense. The better course is probably to just have the schmuck transported back to your county at the end of his sentence. If your revocation motion (or adjudication motion) is on file and a 'hold' has been placed on the defendant in this other jurisdiction, then you can get him at the end of his sentence. If he's served enough time to satisfy you, he can get credit for his back time served in the other jurisdiction.
I tried to utlize this statute a time or two, once with respect to a Colorado inmate and once with respect to a Texas inmate. I drew up all the paperwork and even got a local (Colorado) prosecutor who was willing to try to help. End result: there is no way to get the out-of-state inmate before a court of record to waive the appearance on the Texas motion. There is no incentive for them to transport the inmate to a local court and no mechanism. And, as Lee points out, the foreign judge is not interested in learning any Texas law. With respect to the Texas inmate, I ran into the same problem. You have to get their case manager involved and still no apparent way to actually get the inmate before the judge (or at least more red tape to cut than I determined to be worth). I did not try to get the judge (in Dallas) to issue a bench warrant, but I am not sure that would have worked either (since the "case" was not filed in Dallas). I would be interested in hearing from anyone who has succeeded in getting one of these ex parte revocations, but I think Lee's advice is really the only practical way to get the supervision order revoked.
We have had considerable success using the "revocation in absentia" process. However, we always have offered to run the Texas sentence concurrent with whatever the foreign sentence was if the defendant agrees to the process.
We send a letter and the waiver forms to the defendant in the other jurisdiction indicating that a motion to revoke probation is pending and that if he agrees and signs the waivers, he will get revoked and sentenced to a specific term which will run concurrently.
The idea of the statute, I believe, was to save the cost of returning a defendant to Texas when a concurrent term was to be imposed. It lends itself to cases where a final conviction is the goal rather than sentence length.
Also remember that Art. 1.14 CCP allows a defendant to waive "any right" except a jury in a capital case.
I don't know if there has ever been an appellate decision dealing with this process and I certainly wouldn't use it if it was a sensitive case or where a long sentence would be imposed. But in the right circumstances, by using this provision Texas can obtain a revocation/conviction at nominal cost.
Posts: 39 | Location: Beaumont, TX USA | Registered: June 26, 2002
I have used this process a few times in the past. I have only done it when the inmate in the foreign jurisdiction had a lawyer who was willing to take all the steps described to get the valid waiver. If you are the person who must jump through the hoops, transportation back to your jurisdiction is probably easier to arrange.
Posts: 47 | Location: BASTROP, TEXAS, USA | Registered: January 30, 2002
We have used this a number of times when we receive requests from inmates who know that they have cases outstanding.It has worked well however it requires a lot of schnmoozing with other prosecutors. That's not all bad and you will be glad that you live in TEXAS!
Posts: 334 | Location: Beeville, Texas., USA | Registered: September 14, 2001
We regularly revoke in absentia. It requires the cooperation and consent of the defendant. It is generally done when the defendant, being held in another state and not liking the hold we have on him, sends us a letter. Most of the time, the prison system will take him before a magistrate for us. Only rarely do we need to explain it to the prison officials in that state. If you want a sample form, email me.
Guess I have been using the wrong form, or have not had someone at the right prison. If there is a trick to getting the inmate before a magistrate I would like to know about it. The interesting issue to me is whether the statute was ever even intended for use across state lines. I get the feeling it was modeled after the procedure for an agreed revocation of parole. Frankly, I have to doubt the appearance before the magistrate serves any real purpose, and it would sure make it easier if that provision were not in there.
I've got a fellow who is detained in another County and he wants to plead guilty by affidavit in our County. TCCP 42.03 and Millman (487 S.W.2d 750) say this is a no go. (Of course there is also the statuatory right to waive anything.) Has anyone else dealt with this issue.