Our office recently had a situation arise that we have not had come up before. Defendant placed on a "Pre-Trial Intervention Program" (PTIP) on September 2, 2010. Term of PTIP is 6 months. Approximately 7 months later (April, 2011), find out that defendant has made no progress on PTIP, has not reported, complied with conditions, etc. Defense atty is claiming that since term of PTIP has expired, his client is home free. I know that in a probation revocation case, he would be correct. Would the same rule apply to a PTIP? This guy does not deserve to just walk away - can case proceed?

With the caveat that I haven't done research on this specific issue, my gut tells me that the defense attorney is wrong. If it was pretrial intervention, and the statute of limitations hasn't run on filing the case (or it was filed and continued for a period of time to allow the pretrial intervention), it is not like a sentence of probation because the defendant is not under an order of the court. It is more in the nature of a breach of contract - the defendant agreed to do certain things within a certain time period and failed to do them. Now that the time period has lapsed, he has breached the agreement. The consideration you gave in the bargain was that you would not proceed on the case; now that he has failed on his end of the contract, you are no longer obligated on yours.

Is there a written Pre-Trial Intervention agreement that is signed by both parties at the beginning? If so then what is contained in the agreement regarding unsuccessful conduct? What is the State required to do to cancel the agreement and go forward. The agreement we use merely allows us to pick up where we left off. There is no formal hearing to determine if the defendant has been good or bad because the agreement never involved the court to determine eligibility. As mentioned earlier under these circumstances the only bar would be limitations if applicable.

The way we do it is that in our PTI contract the Defendant agrees to appear for a "Compliance Hearing" on a set date and time that we've already cleared with the judge. Upon signing th contract, we don't immediately dismiss the case. Instead, we get the court to continue it to the compliance hearing.

The judge likes this because he likes to have a chance to congratulate the PTI participant on the record (the majority pass just fine). However, we have had hearings on these dates before and have had no problems. I would imagine that if we had a person who didn't show that had violated the agreement, we could just prove it up without the defendant present. If the person doesn't show up to the hearing, they're in violation of the agreement in addition to whatever other violations we were going to prove up. Hasn't come up yet in our still-young program.

I think the key is anticipating these problems down the line when crafting the details of your program and making your PTI contract as iron-clad as you can. I know this doesn't really help you with your situation, but perhaps it will help you for future PTIs.

THese are common sense arguments I would make:

Breach of contract is not a defense to any criminal offenses.

The term of PTI is how long he has to perform the tasks required, not a deadline for a prosecutor.

THe PTI option is one of trust in both sides, and really, the prosecutor could change his mind at any time. The defendant is putting his faith in the prosecutor that the State will not choose to file, but there is nothing keeping him from doing so other than the prosecutor's hope that the defendant will learn his lesson.

Even if we file motions that say we will do things, such as provide discovery, the resultant suppression if we don't is statutory, not breach of contract.

If the defense actually wants to argue to a jury that your felonious slacker pulled a "gotcha" on the State of Texas by doing nothing when given a very merciful shot, then he is proving he is TERRIBLE candidate for probation.

In the juvenile world, juveniles go on informal supervision, which is just like pretrial intervention, all the time. The completion of six months does not bar the State from going back and filing that case if new info is learned. This would be no different.

I think there is a previous thread on this topic as well, because I remember asking a similar question a few years ago.

Thank you all for your responses. That is pretty much what I was thinking. The PTI agreement probably needs to be worded better for future cases, but I think this one can go forward. Thanks again.

In effect this is a condition precedent to the performance of the decline/dismissal of the charge that has a set time the conditions must exist or be met. As I understand this the conditions were not met (none of them) at the date certain therefore there is no reason to perform.
I suppose he could argue some excuse for non occurrence, but who is to make that decision. As long as proceeding is consistent with Art. 2.01 no matter what the reasons for non occurrence are you should be fine with going ahead.
I am not even going to think about promissory estoppel issues.
I have had a similar experience with the term "stay out of trouble" I had a defense attorney take that to mean actually commit and be found guilty of the offense, I had thought more of the lines of any police involvement. Which later there appeared to not be a meeting of the minds on the term, but I still think Art. 2.01 may be a limitation on jumping up and just voiding the agreement. Although mine had been an oral agreement.
Lastly, it may be a personal decision on whether going forward or not is keeping your word, or spirit of the agreement.

[This message was edited by K.C. on 05-10-11 at .]