I am looking, once again, for a definitive answer to the question of whether a judge can grant shock probation after a jury assesses pen time. The only authority I have found that says yes is Texas Sentencing, but the illustrious authors (may the sun shine always on their heads) of Texas Sentencing did not say why the answer is yes. Article 42.12, Sec. 6 says a judge can grant shock probation where the sentence to TDCJ is "imposed by the court." That looks to me like a restriction on the judge's ability to grant shock probation to cases where the judge--rather than the jury--assessed punishment. Prior to 9/1/93, Article 42.12, Sec. 4 specifically authorized a judge to grant probation even when a jury did not. The repeal of that provision also indicates to me that a judge can't grant shock after a jury sentence of pen time. Martin, John, educate me please.
[This message was edited by John Rolater on 10-15-04 at .]
Posts: 2135 | Location: McKinney, Texas, USA | Registered: February 15, 2001
On the contrary, the Fourth Edition of Texas Sentencing, page 5-7, supported by footnote 44, says shock probation is available only after a judge (not a jury) sentences a defendant. The footnote relies on the plain language of the CCP that refers to the sentence imposed by a "judge". See article 42.12 sec. 6 & 7.
You can get the most recent edition of Texas Sentencing, along with annual supplements, at lexis.com.
The CCP frequently mixes the terms "judge" and "court." In the big rewrite back in 1993, an effort was made to be more specific and use "judge" or "jury" when it made a big difference, as in the shock probation law.
For a prior thread that discussed some of this issue, go to this link.
[This message was edited by John Bradley on 10-15-04 at .]
I have not researched that issue, but it seems to me unlikely there will be any appellate court writing on it. The inmate cannot appeal a negative decision on his motion, and I guess the State would have to file for mandamus to try to prevent the inmate's escape from prison and the void modification of the sentence if the court does think it has such authority. But I think the part about "in which a sentence . . . is imposed by the judge of the court" is pretty vague, because even when the jury assessed the punishment, it was "imposed" by the judge. So, I just do not see the use of "judge" to be controlling, determinative, or definitive. Perhaps you could get an AG opinion, since both TDCJ and the County Sheriff (who is then merely the agent of TDCJ) have an interest in retaining lawful custody of their prisoner. If you do want to challenge such an order, be sure to cite Snodgrass, 150 S.W.162, which said "the Legislature [has] no power to confer on the trial court authority to remit the punishment after a conviction [has] been obtained and penalty assessed by a verdict of the jury."
Martin, what in the world is vague about a judge (and not a jury) imposing a sentence? If we were to adopt your view of those words, the provision would be meaningless, because a judge participates in the announcement and execution of every sentence, even those set by a jury.
The plain language of the CCP and the legislative history of the substitution of the word "judge" for "court" was clearly designed to identify who has what authority in sentencing. And any prosecutor should be very aggressive in protecting a jury's decision from alteration by a judge.
A writ of prohibition would be in order, telling the judge he has a ministerial duty to execute the jury's sentence and prohibiting him from suspending it.
I would not seek an AG opinion. There is a 50-50 chance the AG will reach the wrong decision and then you will encourage lots of mischief.
John, you seem to acknowledge that the jury does not impose the sentence. Because of that fact, the language of the statute does not necessarily answer the question. Maybe the legislative history will help in determining what it means, but my point is- the plain language of the statute is not conclusive. My other thought was, it might be easier to request an AG opinion than to first test the issue in the courts. If the AG got it wrong, then the courts are still available.
Logically, I am not sure there is a reason to say that if we are going to give this power to a judge it should not be available to anyone who meets the qualifications for "shock". Why does the jury's determination of the sentence length mean more than a judge's? We are still speaking of someone who presumably will have benefitted from the 180 days of confinement and who will still have to go back and serve the remainder of the sentence if the wrong decision is made (unless the court cuts the sentence upon revocation, which was the topic of the other thread). No one who convinces a jury to reject probation is happy when the judge sees fit to partially nullify our effort, but to me we ought to be attacking sec. 6 in its entirety if its only true role in life is as a plea bargaining tool.
Why should a jury's decision against probation have any greater weight than the judge's? If, by asking the question out loud, you don't hear the answer, I'm not sure anything I could say would matter. I'll leave this discussion for others.
We actually had a case not too long ago in which a defendant was sentenced to 10 years TDCJ with an agreement that the court would consider shok probation. But by the time the defense attorney filed his motion after the 120 days, we discovered that the defendant was already out of prison on parole (to be fair, he did have some substantial jail time credit which was indicated on the judgment). The court mooted the motion.
Posts: 622 | Location: San Marcos | Registered: November 13, 2003