In 2004 Defendant was sentenced to four stacked terms in State Jail. He suffers from a severe form of diabetes. As a result, he was transferred to a medical unit in the institutional division. Defendant is in the middle of his second sentence and has applied for shock probation. The Judge is concerned that the "place of confinement" has been changed in violation of the sentence. Has anyone ever run across anything like this before?

It would seem that once they have him they can put him where he needs to be, especially if he is suffering some disease and needs special care. Seems to me it would be wrong to house him somewhere he could not receive the proper medical care.

I agree completely. He is getting much better medical care in the ID than he was in state jail. The Judge, however, is wanting some statutory or case law authority that says that changing the place of confinement is not a violation of the sentence.

quote:

---

(i) If a defendant is convicted of a state jail felony and the sentence is executed, the judge sentencing the defendant may release the defendant to a medical care facility or medical treatment program if the Texas Correctional Office on Offenders with Medical or Mental Impairments:


(1) identifies the defendant as being elderly, physically disabled, mentally ill, terminally ill, or mentally retarded or having a condition requiring long-term care; and


(2) in cooperation with the community supervision and corrections department serving the sentencing court, prepares for the defendant a medically recommended intensive supervision plan that:


(A) ensures appropriate supervision of the defendant; and


(B) requires the defendant to remain under the care of a physician at the facility or in the program.


<Text of Sec. 15(i) as added by Acts 2007, 80th Leg., ch. 1308, � 7>


(i) If a defendant is convicted of a state jail felony and the sentence is executed, the judge sentencing the defendant may release the defendant to a medically suitable placement if the judge determines that the defendant does not constitute a threat to public safety and the Texas Correctional Office on Offenders with Medical or Mental Impairments:


(1) in coordination with the Correctional Managed Health Care Committee prepares a case summary and medical report that identifies the defendant as being elderly, physically disabled, mentally ill, terminally ill, or mentally retarded or having a condition requiring long-term care; and


(2) in cooperation with the community supervision and corrections department serving the sentencing court, prepares for the defendant a medically recommended intensive supervision and continuity of care plan that:


(A) ensures appropriate supervision of the defendant by the community supervision and corrections department; and


(B) requires the defendant to remain under the care of a physician at and reside in a medically suitable placement.


Vernon's Ann.Texas C.C.P. Art. 42.12

---

It would appear that the judge should have been notified and been allowed to make the call.

The Texas Correctional Office on Offenders with Medical or Mental Impairments has not recommended the defendant for release based on medical necessity. The defendant is trying to skirt the law and asking for the judge to shock him directly under art. 42.12, Section 15(f)(2). They are asking for a medical release but just not following the appropriate means which were provided in HB 431 and SB 909, which just passed during the leg. session. (which you quoted above)

The judge is concerned about the fact that the defendant was sentenced to state jail and is serving his time in the ID.

Sorry, I read that as letting the judge make the decision to transfer a State Jail inmate to an ID facility.

What judge has time to track where someone is being confined? If the place of confinement is illegal, then I guess that should be challenged by the affected person. But, it does seem that medical care of state jail inmates is to be provided at the state jail facility. 507.025 Govt Code. And a statute refers to "defendants required to serve terms of confinement" in a state jail facility. 507.006(a) Govt Code. But, it looks to me like there is some flexibility in what is a "state jail." 507.026 Govt Code. And presumably, although said by a Pennsylvania court, this would also be the rule in Texas: "A convict has no constitutional or other inherent right to serve his imprisonment in any particular institution or type of institution. He merely has the right to insist upon compliance with statutory provisions."

There is no longer an individual state jail division and institutional division. The two merged into Correctional Institutions Division (CID).

Here is the explantation from the TDCJ website. I do not know how to post as a link.

http://www.tdcj.state.tx.us/cid

Show your judge and maybe he will feel better. Hope this helps.

Phil Hall
Special Prosecution Unit

I am trying again.

http://www.tdcj.state.tx.us/cid/cid_home.htm