Rep. Jerry Madden passed HB 1678. A significant part of that new law will, effective 9/1/07, require judges to give defendants credit for time served at inpatient treatment facilities following adjudication or revocation of probation.

We plan to make waiver of such credit a condition of any negotiated resolution of a motion to adjudicate or revoke. A defendant may waive any right, other than the right to a jury trial in a death penalty case. See Tex. Code Crim. Pro. art. 1.14. The Texas Court of Criminal Appeals has extended that right of waiver to include credit for time served due upon imposition of a sentence. Ex parte Olivares, 202 S.W.3d 771 (Tex. Crim. App. 2006); Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997).

The waiver will avoid the many complications that will come from trying to carry out this misguided new early release law.

You might want to add this to your plea papers:

"Defendant also waives any right to credit for time spent in a substance abuse felony punishment facility or court-ordered residential program or facility."

[This message was edited by JB on 08-21-07 at .]

Don't you think any attorney advising his client to sign such a waiver would be looking at a writ based on ineffective assistance of counsel?

Ken,

Why any more so than all the other rights he waives in the guilty plea? I've seen defendants waive backtime credit to get a certain plea bargain. As long as they know about it upfront and make their decision, what's wrong with it?

Andrea,

Ultimately your question of, �As long as they know about it upfront and make their decision, what's wrong with it?�, may not have a clear answer.

I don�t know what your opinion is of the bill itself. However, I think JB brings up some very valid points regarding the potential implications of this bill. These are points that our legislators probably were not foreseeing during bill analyses.

However, I think this discussion somewhat reverts back to the �Ethics Test Question No. 18� thread in one respect: we are the good guys for one reason. We are not just prosecutors, but ultimately advocates for justice. When Greg stated, �But it is right there in our oaths, and in the prime directive that "justice be done", he was exactly right. Thus, to not seek justice is obstruction of it which violates Rule 8.04 of our professional code.

Although I agree with JB with his analyses of HB1678, I think Ken�s later point that, �The legislature has spoken, just as they have spoken as to entitlement to jail credit for time spent awaiting trial,� persuades me more on the following point.

Clearly, I have issues with the bill, but personally I believe I am not is a position to superimpose my own opinions or jurisprudence for that of the intent of the legislature. I disagree with the bill, but I will allow the voice of the legislature to be heard.

I seriously doubt that most probationers receive the maximum punishment available upon revocation/adjudication. Most of them negotiate some sentence less than the sentence set at the earlier date (for a revocation) or less than the maximum for the range of punishment (for an adjudication). What is the difference between moving that number up or setting a lower number that includes waiver of the treatment credit to avoid administrative complications arising from guessing how many days a defendant spent at inpatient treatment.

If some of you have judges who are thrilled to personally handle credit issues, I'm impressed. It is my experience that credit issues are delegated to (1) probation, (2) prosecutors, (3) clerks or (4) just about anyone but the judge.

There is no objective way at the time of sentencing to pull up credit time for SAFPF (the prison would have that info), CSCD-based inpatient facility or a private inpatient facility. Unless you just want to take the defendant's word (which will change when he gets to prison and has more time to refresh his memory on actual days in treatment), this will be a significant administrative addition to the work of the aforementioned people.

Now, if a defendant gets the maximum sentence, then he certainly is entitled to credit for the inpatient treatment time, assuming the judge determines the treatment was "successful." We have seen that same issue when dealing with credit for time in county jail upon sentencing for a state jail. (And, by the way, we have been doing waivers on that sort of time since 1994 and haven't had problems. Indeed, the CCA has approved such waivers in denying many, many credit writs.)

Setting aside all this discussion, the treatment credit makes the least amount of sense for state jail felony offenses. Let's say the average sentence for a state jail offense is one year in state jail. Inpatient treatment at a SAFPF is generally about a year. Seems to me that we removing any incentive whatsoever for a state jail felon to behave on probation once he has finished his stay in treatment. After all, he will know he has already served his sentence. If he had time spent in county jail pending disposition of the case, maybe we owe him time.

So then whats the point? Time and time again I have had defendants come into court and requesting straight jail time instead of probation - especially when its a state jail case with no good time! and I kind of understand their point. Why get jerked around and have to jump through all sorts of hoops when at the end you are probably going to get revoked anyways, and usually for some sort of technicality?

I want these guys to get drug treatment. I know it is usually not successful the first time (as evidenced by any Hollowood starlet), but I at least want them to have a chance to straighten their lives out and I don't want the jails full of small time crooks.

RTC,

I don't know how it works in your county, but I personally haven't seen someone revoked for "some kind of technicality". I've seen prosecutors and judges bending over backwards to give people second (and third and fourth and...) chances on probation. We're talking multiple chances for treatment, with people who fail out or don't even bother to go.

Even when someone's revocation has only "minor technical" reasons on it, it's usually (a) their third or fourth time there after getting continued and given another chance several times, and (b) there were several other reasons for the revocation, frequently including the commission of a new offense, but we agree to strike it because they don't want to admit they committed the new offense in their plea of true.

I want the people who need it to get drug treatment too. But I don't think this credit actually provides any incentive for it, and I wouldn't blame a prosecutor for seeking a waiver of it any more than a waiver of appeal.

For case law supporting the use of plea bargaining to deal with back time credit, read this case.