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I'm trying to figure out two relatively new statutes, and was hoping that someone here had researched them. Any guidance would be greatly appreciated.

First. Tex. Gov't Code s 411.081 This appears to be a new non-disclosure (nee "expunction") statute that applies to deferred adjudication cases in almost all misdemeanors, some other misdemeanors after a five-year waiting period, and some felonies after a 10-year waiting period. I think the "best interest of justice" language in section (d) makes a non-disclosure order discretionary, but this looks like a nightmare.

Second. Tex. Code Crim. Proc. art 42.12 s 24. This statute created on June 18, 2003, an "affirmative defense" (due diligence) to probation revocation proceedings. This isn't the "due diligence" of the state going after a probationer promptly; it appears to be a brand new defense based on whether officers attempted to contact a probationer before a revocation premised on a failure to report.

I can't find were either of these statutes has been interpreted by an appellate court, or discussed in an article or paper.

Help!

Robert McGlohon
Anderson County D.A.'s Office
 
Posts: 14 | Location: Palestine, Texas, USA | Registered: March 04, 2004Reply With QuoteReport This Post
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Don't know that I can help, but I think I know the intent of the statute. I observed oral argument in Peacock, 77 SW3d 285 and also worked in Austin at the time. I believe it was to essentially lay down guidelines of what is considered due diligience. My interpretation is that as long as there is evidence that at least one contact was attempted after the revocation was filed the defendant loses the affirmative defense. Of course that is only my take on the statute, but the law was so unclear as to what kind of attempted contacts needed to be made that this was an attempt to put in statutory language what had been made unclear in case law. I briefed this issue in the Fifth Circuit prior to the enactment of 42.12 sec 24 due diligence and lost (a 60 year sentence on revocation).
 
Posts: 419 | Location: Abilene, TX USA | Registered: December 16, 2002Reply With QuoteReport This Post
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Thanks for the reply. The enactment of Section 24 may have been intended to codify and clarify Pickle, but I have doubts that that's what happened. Pickle makes clear that the due diligence defense was non-statutory, and it looks to be confined to the question of whether the state exercised due diligence in arresting a probationer, after the supervision period had run, on a capias and motion issued before the supervision had run. The statutory response to that, also effective June 18, 2003, appears to be Section 21(e). Section 24 makes no mention of the timing of the hearing or the filing of the motion and capias. It appears to be an affirmative defense to revocation itself, when that revocation is based on a failure to report. At least that's how I read the plain language of the statute. (BTW, it occurs to me that I have NEVER seen a revocation based solely on a failure to report, so I question how useful/dangerous the statute will be.)
 
Posts: 14 | Location: Palestine, Texas, USA | Registered: March 04, 2004Reply With QuoteReport This Post
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The intent of Sec. 24 was to overrule Peacock and limit the offense of due diligence. By its plain language, it (1) turns it from a defense to an affirmative defense, shifting the burden of proof to the defendant, and (2) limits the affirmative defense to only a few situations. A separate amendment clarifies that the trial court's jurisdiction continues in a more effective manner.
 
Posts: 2136 | Location: McKinney, Texas, USA | Registered: February 15, 2001Reply With QuoteReport This Post
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Your are probably right. It seems to me to raise an interesting question of statutory construction. The "plain language" of section 24, by itself, doesn't mention anything that would tie it to Peacock. It doesn't even mention hearings conducted after the expiration of the community supervision period, or that it is supposed to apply to the conduct of the hearings, rather than the question of revocation itself. At the same time, it reads as you suggest when read in pari materia with section 21. And what I remember of that doctrine seems to instruct that they do be considered together (same enactment, same legislative purpose). But would that conflict with the "plain language" rule that doesn't even let you *get* to legislative purpose unless there's some sort of conflict or ambiguity?
 
Posts: 14 | Location: Palestine, Texas, USA | Registered: March 04, 2004Reply With QuoteReport This Post
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Robert, where have you ever read a statute that overtly says it is overruling a particular case? The answer is "never," yet we know the Legislature routinely acts to change the law in direct response to court opinions. Usually, that information is contained in the legislative history, but on this bill, it was a little less obvious. However, I'd encourage you to call me (512-474-2436) so I can walk you through our thoughts on why this bill replaces the courts' old common-law doctrine of due diligence with a "new and improved" version, one which TDCAA helped to get passed.

As for the new non-disclosure law, see Larissa Roeder's article on p. 19 of the May/June 2004 Texas Prosecutor, which you can also view here: TDCAA link

Shannon
 
Posts: 2419 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
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The issue is also covered in the updated volume of The Perfect Plea, which should be arriving on your desk very soon. Check out page 134.

Any reasonable review of the legislative history of the amendment would result in the conclusion that the legislature has changed the defense by narrowing it.

I think it is saying too much to say the statute overrules case law. It simply replaces case law for new revocation hearings. The case law remains accurate for those cases revoked before the effective date of the amendment. In the absence of a controlling statute, appellate courts can place their own interpretation on a law.

Of course, in this instance, the court should have concluded that there was no such thing as a due diligence defense. It has never been clear what law required the defense. Was it a concept arising from the penumbra of the due process clause (much like the right to abortion)? Was it just 5 votes (much like the decision to adopt a definition of beyond a reasonable doubt)?

John Bradley
District Attorney
Williamson County, Texas
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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The Code of Criminal Procedure trumps case law when it provides a rule. See Tex. Code Crim. Proc. Ann. art. 1.27 (TDCAA 2003). You only get to use case law when the code is silent. Id. Where the Code was previously silent on continuing jurisdiction and due dilligence, it now speaks loud and clear. See Tex. Code Crim. Proc. Ann. art. 42.12, Secs. 21(e) & 24 (TDCAA 2003). This is consistent with the legislative history. Senate Committe Report on HB 1634; House Research Organization Report HB1634 So far, we are winning our arguments based on Sec. 24 in the trial courts. Hopefully, we'll have some appellate court opinions soon.
 
Posts: 2136 | Location: McKinney, Texas, USA | Registered: February 15, 2001Reply With QuoteReport This Post
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