A few months back, our judge began using a process of administrative hearings for probationers who are first time probation violators or who commit minor probation violations. It is essentially an effort to have an intermediate sanction shy of filing an motion to revoke. The probation department notifies the probationers about a week prior to the hearing that their presence is required in court. At the actual hearing, each probationer on the list is brought to the bench, the supervising officer describes the problem, the probationer is given a chance to say his peace, and the judge either modifies the terms of probation, requests a motion to revoke be filed, or simply chews out the defendant. We have found that this process, done regularly, saves the court some time, the defendants some bond and attorney money, and is useful in preventing more serious or repeated violations. The modifications include essentially anything from conditional jail time to SAFP to extra community service.

Recently, we have had some defense attorneys object to the hearing on grounds that it is not provided for under law, violates due process, and is not in compliance with the rules of evidence.

We have advised our judge that CCP Art. 42.12 allows a judge to change the conditions of probation essentially whenever he sees fit. Therefore, administrative hearings are a fair and efficient way to do something that the Court already has the power to do, so long as the Court doesn't revoke anyone's probation.

Does anyone else see any problem that we have overlooked?

The judges in Chambers County have been doing the same thing for years with good results. It does wonders for the probationers when the first couple to go before the bench are sent directly to jail for some therapy.

My judge also conducts "non-compliance" hearings. Interestingly, he even orders the probationer held in custody prior to the hearing. We are not notified that such hearing is to take place, but are present at the time the hearing takes place (just as observers, not participants). I believe that if the judge is actually going modify the conditions of supervision, he must conduct a hearing with a record, and presumably that means the State's attorney would be participating. Particularly if someone were going to suddenly be sent for a period of confinement and treatment under sec. 14 or incarceration in county jail under sec. 12, it would seem they are entitled to hearing with some measure of due process. It would appear the only way to challenge these types of modification orders is by habeas corpus, since there is no right to appeal from a modification order. I am unaware of any cases in which these types of hearings have been challenged at the appellate level. Maybe that is because the judge could probably reissue the same order after a sec. 21 hearing, so defense counsel see the futility of challenging them.

There have been several cases challenging the extension of a period of supervision by a judge without a hearing. All of the cases have upheld the authority of a judge. I think the same concept is applicable to an amendment of the conditions.

Of course, we do all of these amendments locally by agreement with the defendant on the record. If the defendant declines to agree, a motion is filed, an arrest is made, and a lawyer is appointed. Not required by due process, though; just a local practice. Defendants rarely take this option.

As I read the law, conditions of probation may not be altered without following Art. 42.12 Sec. 10 (e). If the defendant agrees, then the conditions are modified. If not, then it is set for a hearing under Art. 42.12 Sec. 22. Following the hearing, the court must make a finding that there has been a violation of a condition of community supervision before the court has the authority to modify the conditions.

I may be wrong, but I do not believe a judge has the general authority to change probation conditions without following the statutory procedure.

Yes, a judge may amend the conditions after a motion and hearing, but it is not required. Article 42.12, sec. 11(a), says a judge "may, at any time, during the period of community supervision, alter or modify the conditions." It also says that a judge may impose any reasonable condition.

This language by the Legislature was deliberately chosen to give judges maximum discretion and to permit the amendment of conditions without an adversarial hearing.

It still seems to me that the formality of the hearing and other aspects of due process would be tied to loss of liberty-- the interest talked about in Gagnon v. Scarpelli, but indeed one court recently reviewed the issue and broadly held as follows: "a modification of an individual's probation does not require the same procedural protections as a probation revocation. In particular, the nature of the interest and the loss resulting from a modification simply do not parallel the fundamental nature of the interest or the seriousness of the loss involved in Morrissey or Gagnon. The primary loss occasioned by a modification of a condition of probation is still only the possibility of future revocation, a loss that potentially occurs only if the condition is not met. Because a probationer is entitled to a hearing prior to revocation, the potential of loss caused by modifying a condition of probation is not considered sufficiently grievous to require a hearing. See Morrissey v. Brewer, supra, 408 U.S. 482; see also Meachum v. Fano, 427 U.S. 215, 224-25, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) (rejecting argument that "any" loss is sufficient to invoke due process, noting that "determining factor is the nature of the interest involved rather than its weight"). " State v. Smith, 769 A.2d 698 (Conn. 2001)(condition requiring participation in sex offender treatment program could be added without a hearing). I don't really think the limits of Gagnon and Black v. Romano, 471 U.S. 606 (1985) are truly all that clear.

I do wish Texas would adopt the idea that revocation hearings can be held without compliance with the rules of evidence-- particularly the hearsay rule and Rule 702. More time is wasted in getting evidence available for these hearings than any other task in our office. A sworn violation report from the supervising officer or other responsible person with personal knowledge should be sufficient.