Does anyone have the full text of HB 1634, effective date June 18, 2003, which limits the "due diligence" defense in revocation proceedings?

Here's the link to the enrolled version from the Legislative Website:

HB 1634

If a person with arrest authority, "failed to contact or attempt to contact the defendant in person at the defendant's last known residence address or last known employment address," it's a defense.

To what or to whom does "in person" refer? Does that mean an officer has to physically go to one of the addresses, or will regular or perhaps restricted certified mail suffice- how about a phone call? Is there some great ambiguity here, or must a law enforcement officer physically go to one of the addresses? If it's the latter, how much have we gained?

I'll defer to Shannon on this one, but I think it was meant to eliminate letters and calls, but only require one (1) in person attempt to serve the defendant with the probation violation warrant or capias. So, as long as someone capable of executing it tried to execute it at the defendant's home or work one time, we've made due diligence. At least around here, I think our judges were requiring somewhat more than a single attempt to serve the warrant to show due diligence. That begged the question--what more can you do if the attempt to serve the warrant led the deputy to a vacant lot or a dumpster behind a warehouse? I don't think the Senate committee was willing to pass an outright abolition of due diligence.

Although I don't know that there is any legislative intent on the final version that passed, John is correct - the idea was to require one home or work visit by a probation or peace officer to make sure the guy has flown the coop. The feeling was that CSCDs (or at least the good ones) do that anyway. Now all they have to do is swing by, make a note in their file that the guy is gone (for your future use in court), and wait for him to get caught.

As for what we gained:

(1) this is a much lower burden than some courts around the state have imposed, and since it's clear that this CCA is never going to repeal DD, it's better than before;
(2) it makes things more standardized throughout the state, which is beneficial; and
(3) if you read it carefully you will see that the affirmative defense only applies to allegations of failure to report or failure to remain in a certain place; there is no due diligence affirmative defense for other allegations that may be in an absconders' motion to revoke (dirty UAs, new offense, failed to work/support kids/do community service, etc.). That's gotta be worth something, right?

Shannon

Shannon is absolutely correct in my opinion regarding the limited situations where the affirmative defense applies. In all probability, there will always be a failure to report allegation used to sustain revocation in a due diligence situation even where a new offense may be involved.

This statute is definitely better than before but it sure isn't what many of us hoped it would be.

Thanks for the inputs, I've gotten philosophical overnight, and decided that one home or work visit really isn't too much to ask, so long as I'm not the one doing it.

I called the bill to my court probation officer's attention this morning. He had not previously heard of the new statute. He tells me here in Tarrant County it is the policy for the officer to make and document a home/work visit within 30 days of the defendant's failure to report. You might want to pass the word on to your officers and see if they will institute such a policy in your jurisdictions.

So it appears that the due diligence defense can only be asserted by the defense if the allegation is a failure to report. If the allegations are anything else (i.e. incomplete hours, dirty UAs) the "Due diligence" defense doesn't even come into play. Is this true?

That's correct. Just as the affirmative defense for inability to pay is limited to that allegation, the aff. def. for absconding is limited as well (it is no coincidence that the language of the new aff. def. is similar to the pre-existing one).

Well, at least that is what the authors intend. No telling what the CCA will do when faced with this language. We would hope that they will accept the statute as overruling the court-made law and narrowing the defense, but there really is no telling until it happens.

Part of the problem is that the CCA has never articulated the origin of the defense. Was it found somewhere in the vague language of a statute? Was it an implied due process requirement? Who knows, but that makes a big difference on whether they take the new law as the final word on a diligence defense.

Time will tell.

Think about that when you are looking at the ballot in March for the election of three CCA judges.

I haven't found a CCA case explaining the historical basis for the due diligence defense, but the Fort Worth Court of Appeals offered the following in Butler v. State, 733 S.W.2d 400, 401 (Tex. App.--Fort Worth 1987, no pet.) (Lattimore, J.):

"A defendant has a constitutional right to a speedy hearing on a revocation motion, > Hernandez v. State, 556 S.W.2d 337, 340 (Tex.Crim.App.1977) and > Ross v. State, 523 S.W.2d 402, 404 (Tex.Crim.App.1975). In Barker v. Wingo, the United States Supreme Court has adopted a balancing test to determine whether a defendant's sixth amendment right to a speedy trial has been violated. The four factors generally considered are: (1) length of the delay; (2) reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. See > Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); > Phipps v. State, 630 S.W.2d 942, 946 (Tex.Crim.App.1982); > Green v. State, 555 S.W.2d 738, 741 (Tex.Crim.App.1977); > Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App.1973); > Courtney v. State, 472 S.W.2d 151, 153 (Tex.Crim.App.1971). This constitutional right to a speedy trial is to be distinguished from any rights granted under the Texas Speedy Trial Act, TEX.CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Pamph.Supp.1987), which was held unconstitutional in Meshell v. State No. 1339-85 (Tex.Crim.App., July 1, 1987) (not yet reported)."

. . . The Second Court of Appeals then went on to affirm the order revoking the defendant's probation.

In Connolly v. State, 983 SW3d 738, 741 (TCA 1999) (Keller concurring), Judge Keller wrote that she was not expressing:
any support for the legitimacy of the so-
called "due diligence" defense.
This "defense" appears to have been created
out of thin air in Stover v. State, 365
S.W.2d 808 (Tex.Crim.App.1963), which was then
relied upon without question in subsequent
cases. See Stover, 365 S.W.2d at 809; Prior v.
State, 795 S.W.2d 179, 183 (Tex.Crim.App.1990)
(quoting Stover); Langston v. State, 800
S.W.2d 553, 554 (quoting Prior quoting
Stover ); Rodriguez v. State, 804 S.W.2d 516,
517-518 (Tex.Crim.App.1991)(citing Prior,
Stover, and Langston ); Harris v. State, 843
S.W.2d 34, 35 (Tex.Crim.App.1992)(citing
Langston, Prior, and Rodriguez ). Whether the
law imposes upon the State the duty to
exercise diligence in apprehending a
probationer is a question worth reconsidering
in an appropriate case." (Read Stover's 2
page opinion and you'll be shocked that it was
the origin of the current doctrine).

Judge Keller's comments encouraged those of us wanting to see the due diligence doctrine put out of its misery. Unfortunately, later in Peacock v. State, 77 SW3d 285, 289 (TCA 2002), the Court acknowledged that there was no express statutory authority for the due diligence defense, but went with the "it's better to be consistent" theory and declined to overturn the precedential body of law which had been followed for years, even though its origins were dubious. Thank goodness the Lege chimed in with limitations to the doctrine.

Another wonderful example of the better to be consistently wrong theory was the Kinney rule concerning re-use of convictions for purposes of enhancing punishment. See McAtee, 586 S.W.2d at 549. The legislature had to overrule the court on that one too. Always hard to understand when the legislature shows more sense than the court, but it does happen occasionally.

I think the key issue is whether the CCA, or other courts, will rule that the new due diligence provision was intended to limit the due diligence defense only to reporting and remaining within a specified place. The statute is clear that it does apply to those two probation issues, but does the legislature's failure to mention a due diligence requirement for other probation terms eliminate the State's obligation under prior case-law. Of course local defense attorney's here are saying no, whereas I am arguing that because the legislature addressed the issue, they intended to limit the defense to those two probation terms. It would have helped if the legislature would have just made it a little more clear. How do you all feel? Is it obvious to you that the Statute eliminates the need to prove due diligence for other prob violations?

It seems obvious to me that if the Legislature truly intended to limit or overrule the "principle of equity" which calls "for relief based on the justice system's sense of fair play and reasonableness" Smith, No. 06-03-091-CR (11/07/03), it would have stated something like "it is no defense that the community supervision department, the prosecutor's office, or law enforcement officials failed to exercise due diligence in apprehending the defendant where he failed to continue to report to a supervision officer as directed or failed to remain within a specified place". While one can hope the enactment of a limited statutory defense will encourage the court to abandon the broader "principle of equity" (which actually has nothing to do with with fair play in the context it is being applied), I would not yet encourage anyone to abandon the more onerous "diligence" standards set forth in Peacock. I hope you guys are right, but I have this very uncomfortable feeling.

It would seem a rather absurd act for the Legislature to narrow a defense established by court case for the sole circumstance the defense makes any sense, leaving the broader nonsense for all other circumstances. Applying that chestnut, "The Legislature shall not be presumed to do an absurd act," an appellate court acting in a reasonable manner would have to conclude that the statutory defense overruled all case law to the contrary.

No doubt some trial court or court of appeals will decide otherwise, but I am confident the Court of Criminal Appeals (at least by majority vote) will reach the only rational conclusion available.

The most amazing thing about this whole saga is the fact that after Stover the Legislature used the following language to address the situation: "a defendant's probation shall not be revoked during his good behavior, so long as he is within the jurisdiction of the court and his residence is known, except in accordance with the provisions of Section 8 [now 21] of this Article". The CCA just plain ignored that and went on its merry way.

Here is the first case interpreting the legislative fix for the "due diligence" defense. TDCAA and its legislative people should take a bow:

Nurridin v. State

(Tex.App. Dist.5 01/26/2005)
Justice FitzGerald
Nos. 05-04-00499-CR, 05-04-00500-CR 05-04-00501-CR

AFFIRM

OPINION

Keisha Rasheedan Nurridin a/k/a Keisha Rena Curry appeals the revocation of community supervision from her conviction for robbery and her two convictions for forgery. After revoking appellant's community supervision, the trial court sentenced her to two years' imprisonment and a $500 fine in the robbery case and two years' imprisonment and a $300 fine in each of the forgery cases. Appellant asserts the trial court erred in determining the affirmative defense of the State's lack of due diligence in apprehending appellant applied only to the allegation that appellant violated her community supervision by failing to report and not to any of the other alleged violations of community supervision. We conclude the trial court correctly interpreted the statute. We affirm the trial court's judgments.

BACKGROUND

On September 5, 1997, appellant pleaded nolo contendere to two charges of forgery, and the trial court sentenced her to two years' confinement and a $300 fine in each case. The trial court suspended imposition of the term of confinement and placed appellant on community supervision for a two-year term. On April 27, 1998, appellant pleaded guilty to robbery, and the trial court sentenced her to five years' imprisonment and a $500 fine. The trial court suspended imposition of the term of imprisonment and placed appellant on community supervision for a five-year term. On July 2, 1999 and September 3, 1999, the State filed motions to revoke appellant's community supervision in the two forgery cases, alleging appellant violated the terms of her community supervision by using marijuana, failing to pay fees, fines, and court costs, failing to perform community supervision, and failing to report.

The trial court issued a capias for appellant on July 2, 1999. On April 7, 2003, the State filed a motion to revoke appellant's community supervision in the robbery case, alleging appellant violated the terms of her community supervision by using marijuana and failing to report. Appellant was taken into custody on December 23, 2003. On March 18, 2004, the trial court heard evidence on the motions to revoke. On March 22, 2004, the trial court announced from the bench that the allegation of failing to report was not true, apparently because the State failed to act with due diligence in apprehending appellant, and that the other allegations were true. The trial court revoked appellant's community supervision in each case and sentenced her.

JURISDICTION AFTER EXPIRATION OF COMMUNITY SUPERVISION TERM

Before 2003, article 42.12 of the code of criminal procedure did not expressly provide that a trial court had jurisdiction to revoke a defendant's community supervision and sentence him after the expiration of the term of community supervision for a violation occurring during the term of community supervision. In Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002), the court of criminal appeals discussed a trial court's jurisdiction under the law in 2002 to revoke a defendant's community supervision after the term of community supervision had expired. A trial court could hold a hearing on a motion to revoke community supervision after the term of community supervision had expired. Id. at 287. However, the trial court lacked jurisdiction to revoke community supervision after expiration of the term unless (1) the record showed a motion to revoke was filed and a capias was issued before the community supervision term expired, and (2) the State proved by a preponderance of the evidence that it used due diligence in executing the capias and in holding a hearing on the motion to revoke. Id. at 287-88. The reason for this system of continuing jurisdiction was to prevent a defendant from benefitting by absconding until the expiration of the term of community supervision. Id. at 288. The reason for the requirement that the State prove due diligence was to ensure that the policy of continuing jurisdiction was exercised only in those cases where a defendant was eluding capture. Id. at 289. "Just as the probationer should not benefit from hiding, the State should not benefit by doing nothing meaningful to execute a capias, i.e., if a probationer is not being sought, there is no reason for the court to have continuing jurisdiction." Id.

In 2003, the legislature indicated it disagreed with the system of continuing jurisdiction created by case law,*fn1 and it amended article 42.12 to address the trial court's continuing jurisdiction to revoke community supervision after the expiration of the term of community supervision. See Act of May 30, 2003, 78th Leg., R.S., ch. 250, �� 2, 3, 2003 Tex. Gen. Laws 1158, 1158 (codified at Tex. Code Crim. Proc. Ann. art. 42.12, �� 21(e) & 24 (Vernon Supp. 2004-05)). To section 21 of article 42.12, the legislature added paragraph (e): A court retains jurisdiction to hold a hearing under Subsection (b) and to revoke, continue, or modify community supervision, regardless of whether the period of community supervision imposed on the defendant has expired, if before the expiration the attorney representing the state files a motion to revoke, continue, or modify community supervision and a capias is issued for the arrest of the defendant.

Tex. Code Crim. Proc. Ann. art. 42.12, � 21(e). The legislature also added section 24: For the purposes of a hearing under Section . . . 21(b), it is an affirmative defense to revocation for an alleged failure to report to a supervision officer or to remain within a specified place that a supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge for that alleged violation failed to contact or attempt to contact the defendant in person at the defendant's last known residence address or last known employment address, as reflected in the files of the department serving the county in which the order of community supervision was entered. Id. art. 42.12, � 24.

In her single issue on appeal, appellant questions whether the legislature, by enacting section 24, intended to end the "due-diligence defense" as to all allegations of violations of conditions of community supervision except for failing to report or to remain in a specified place. The overall goal when interpreting a statute is to discern the collective intent or purpose of the legislators who enacted the legislation. Sanchez v. State, 138 S.W.3d 324, 325 (Tex. Crim. App. 2004); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). "We necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment." Boykin, 818 S.W.2d at 785. When reviewing the literal text of the statute, this Court will read the words and phrases of the statute in context and construe them "according to the rules of grammar and common usage." Tex. Gov't Code Ann. � 311.011(a) (Vernon 1998). When the meaning of the text of a statute should have been plain to the legislators who voted on it, "we ordinarily give effect to that meaning." Boykin, 818 S.W.2d at 785.

"Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute." Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991) (quoting Ex parte Davis, 412 S.W.2d 46, 52 (Tex. Crim. App. 1967)).

Appellant argues section 24 shows the legislature intended to preserve the due-diligence defense and to relax the State's burden of proof. Appellant asserts that if "the legislature intended for the due diligence defense to apply only to allegation [sic] of not reporting, the bill would have used more limiting language, such as 'only' or 'is limited to.'" Appellant then appears to argue that the legislature intended for the affirmative defense to apply to all allegations of violations of community supervision as long the violations include the failure to report or to remain in a specified place.

We disagree with appellant's interpretation. The language of section 24 is clear. The affirmative defense applies "to revocation for an alleged failure to report to a supervision officer or to remain within a specified place." Tex. Code Crim. Proc. Ann. art. 42.12, � 24. The legislature could have used the words "only" or "limited to," but it did not have to do so.

Appellant's argument that the affirmative defense applies to all allegations of community supervision violations that include the failure to report or to remain in a specified place lacks merit because section 24 specifically limits the applicability of the affirmative defense to two grounds, the failure to report and the failure to remain in a specified place. Contrary to appellant's argument, the statute does not state, and cannot reasonably be interpreted to read, that it applies to all allegations as long as one of the allegations is the failure to report or to remain in a specified place.

Appellant also argues the trial court's interpretation of section 24 would promote revocations based solely upon "technical" violations, which appellant asserts is contrary to the legislature's intent. Appellant asserts that if section 24's affirmative defense applies only to allegations for failure to report, "then courts would be free to revoke probations for other technical reasons." Whether to revoke community supervision is within the discretion of the trial court. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.). Courts may revoke community supervision for a violation of any condition, including violations of any single "technical" condition. See Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.-Fort Worth 2000, pet. ref'd); Lee, 952 S.W.2d at 900; see also Tex. Code Crim. Proc. Ann. art. 42.12, � 21(b) (if violation found, court may continue, extend, modify, or revoke community supervision). Appellant's assertion lacks merit. We conclude the plain, unambiguous language of section 24 makes clear that this affirmative defense applies only to revocations on the grounds of failing to report or to remain in a specified place. We resolve appellant's issue against her.

We affirm the trial court's judgments.

Publish -- Tex. R. App. P. 47

Opinion Footnotes

*fn1 The Senate Criminal Justice Committee explained the purpose of the bill: Current case law requires the state to "exercise due diligence" to apprehend a defendant for violating probation including for absconding. The state is penalized if it does not continually, until the defendant is apprehended, make efforts to locate the absconder. Some feel that the defendant, who has been given a second chance by being placed on probation, should have the responsibility to comply with all terms and conditions of probation and not have as a possible result the dismissal of the state's motion to revoke probation. C.S.H.B. 1634 ensures the ability of a court to maintain jurisdiction over a person who absconds while on probation. Senate Criminal Justice Comm., Bill Analysis, Tex. H.B. 1634, 78th Leg., R.S., 2003. The House Committee on Criminal Jurisprudence used similar language to explain the purpose of the bill: Current case law requires the state to "exercise due diligence" to apprehend a defendant for violating his probation. As the law stands now, the defendant is rewarded for not complying with the terms and conditions of his probation by absconding. The state is penalized if it does not continually, until the defendant is apprehended, make efforts to locate the absconder. The defendant, who has been given a second chance by being placed on probation, should have the responsibility to comply with all terms and conditions of probation and not be rewarded with a dismissal of the state's motion to revoke probation when he absconds. C.S.H.B. 1634 ensures the ability of a court to maintain jurisdiction over a person who absconds while on probation. House Criminal Jurisprudence Comm., Bill Analysis, Tex. H.B. 1634, 78th Leg., R.S., 2003.