We currently run a very rarely used pre-trial diversion program entirely through our office. We are transitioning to a system in which our probation department supervises the PTD defendants and collects supervision fees.

Article 102.012 states, in part: "A court that authorizes a defendant to participate in a pre-trial intervention program established under Section 76.011, Government Code may order the defendant to pay to the court a supervision fee."

It appears to me that before our CSCD can collect supervision fees, reimbursement for drug screens, etc., a court must approve of a pre-trial diversion agreement.

It also seems to me that in order for the court to order a defendant to pay the costs of participating in the pre-trial diversion program, the court must have jurisdiction over the defendant, which would require me to file an information. (Obviously, the case would be dismissed once the defendant completed the pre-trial diversion program.)

However, I understand that some offices run pre-trial diversion programs in conjunction with their respective probation departments without ever filing a charging instrument.

My question is: can I do this and still comply with Article 102.012 of the CCP?

We have just started up an organized PTD program utilizing our community supervision dept to supervise. Here's my take on it:

Section 76.002 says that the a District Court Judge must establish the CSCD and approve the budget and Community Justice Plan. That language, combined with 76.011 and 102.012, suggests to me that the District Court must approve a CSCD supervising PTD participants and charging them for participating in the program. SO, before starting the program, I drafted a general authorization for those two things, explained the program to the district judge, got him to sign the general authorization, and filed that in the general minutes of the District Clerk. I believe that general authorization satisfies 102.012's requirements, and that approval from the court from here on out for each individual participating in the program is unnecessary. Therefore, we do not need to file an information for each case before putting a person on the program.

As a practical matter, however, we do file each case and allow the court to arraign and admonish the defendant of his/her rights, then let the court approve the waiver of those rights before we will talk with a defendant about a pre-trial diversion program. We do this because we obtain a signed guilty plea from each participant so that if they fail the program we do not have to go through a trial on the merits if they fail the program; instead the case would go to the judge for punishment.

I believe this approach is in line with the statute and with the concept of "pre-trial diversions"

Thanks for the response. It sounds as if y'all have gone above and beyond regarding the "authorization" the statute seems to require. We'll certainly consider doing something similar here.

My main concern regards the "may order" portion of the statute. Can the court order the PTD participant to pay $60.00/month in probation fees (or order him/her to do anything at all) if a charging instrument has not been filed?

My fear is that if we do not file a charging instrument, we will be improperly collecting probation fees.

A previous AG opinion has indicated prosecutors can't ask defendants to make charitable donations in exchange for not filing a case. Wouldn't the same be true of an agreement to pay monthly probation fees in exchange for not filing a case?

It sounds as if your county goes above and beyond regarding the latter portion of the statute as well. I think if we set up a similar program, we'd certainly be in compliance with the statute. However, I'm still curious to know if a PTD program can involve a CSCD without involving the court by filing a charging instrument.

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Originally posted by R Daniel:
A previous AG opinion has indicated prosecutors can't ask defendants to make charitable donations in exchange for not filing a case. Wouldn't the same be true of an agreement to pay monthly probation fees in exchange for not filing a case?

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The CSCD's PTD fee is authorized by statute. A charitable donation is not. Big difference. That's why the prosecutor/county fee (CCP 102.0121) was created in 2009--if it's in statute, then it's OK.

To clarify my earlier comments: I believe the statute certainly authorizes "court-ordered" probation fees. The question I would like to have answered is whether the statute authorizes non-court-ordered probation fees.

If the statute does not authorize non-court-ordered monthly CSCD fees, is there still a big difference between asking a defendant to pay the probation department and asking a defendant to make a donation to MADD?

Certainly there's a difference: in one situation the defendant is donating money, which does not benefit the defendant in any way but indirectly benefits the prosecutor and/or the community. In the other he/she is paying for services rendered to him. The defendant is contracting with the CSCD to supervise him/her; there are costs to the CSCD to do so and the monthly supervision fee covers those costs. There is no benefit to the prosecutor for the monthly fee, other than that our tax dollars are not being used to give the diversionee a free shot at clearing up their criminal history.

I believe my "general authorization" approach lets a judge tell the CSCD "it's ok to take in diversionees, and to charge them the appropriate costs of their supervision". The judge is approving the general framework, but not each individual case. And that's as it should be, because Pre-Trial Diversion should be exclusively the domain of the prosecution, not the court.

More and more, legislation is attempting to remove prosecutor discretion by codifying the pretrial diversion idea. The original version of the veterans courts diversion program did not require prosecutor consent. After some issues were raised regarding the separation of powers between the legislature, courts and elected prosecutors, consent by prosecutor was added.

But, as money becomes available, that consent will likely be more and more coerced through the distribution of money to those offices that consent. So, while we might all agree that prosecutor control over pretrial diversion is appropriate, we should watch over that independence carefully.

JB, in the name of watching my independence carefully, do you think my interpretation of the scant legislative guidance we have is wrong? Should I have the judge approve each PT Diversion/Intervention on the record and have that judge order each diversionee to pay CSCD its costs? Or do you think that a "general authorization" for all diversionees by a district judge is sufficient to address 103.012's "court order" to pay probation's costs?