How do your court's treat documents within the probation officer's file for purposes of proving up a revocation. Do they allow you to admit documents in the file, or the whole file as a business record? I am referring specifically to reports issed by drug treatment centers about the defendant's compliance with treatment which were sent to the local probation officer (i.e. whether they got kicked out or failed treatment), or reports issued from a probation officer in another jurisdiction when there is a transfer of probation? Recently I tried to introduce a report from another jurisdiction indicating that the defendant failed to report there. I proved up the local file on the defendant as a business record through the local PO and asked the PO to testify from those records about a report from the other jurisdiction. The judge refused to admit the item in the probation officer's file indicating the defendant failed to report, on grounds that it was hearsay. I should have known better.

Now I am concerned about proving up a defendant's failure at a treatment facility like SAPF, and the ability for my probation officer to testify from his or her file about this failure. What do you do? Is there a case I don't know about? Or am I just ignorant, and all of you have to bring in witnesses on all issues other than local technical violations within the personal knowledge of the probation officer. I did find one case indicating that the probation file is admissible beyond the business record exception under Rule of Evidence 803(8)(b) upheld in . Greer v. Texas: 999 S.W.2d 484 (Tex.App.-Houston[14th Dist.] 1999. Appreciate any imput.

Hey, it is often a real pain and not well liked by many of the probation officers, counselors, etc. at SAFPF, especially from Brownwood or other distant and exotic locales, or other counties, but I usually subpoena the people from the facility or other county probation department. Just like the dreaded having to bring the officer from Dallas or San Antonio, or Houston, etc. on the condition 1 violation. I have had to do so on more than one occasion in the past and in some instances they actually had to testify. Most are cooperative, although sometimes they really don't want to come all the way here. I don't expect my judges to accept the records from elsewhere, without an agreement from the defense, and if they are going to agree to that, they usually plead true anyway.

With respect to court ordered drug treatment programs, I have sent a request along with a business records affidavit to the centers and they will generally attach the records and execute the affidavit. I use this same process for probationers who have been transferred out of county and their records are with another probation department. I then file those with the court prior to the hearing to insure they are admitted as business records.

I have not had the necessity of obtaining them from SAFPF in this manner as the probation officer has always been able to testify that they were unsuccesfully discharged.

The real issue on probation records becomes the objection under Crawford v. Washington that the Defendant has the right to confront the non-present probation officer. We recently had an appeal upheld where the Judge admitted probation records from the State of Michigan, adjudicated a sex offender guilty, and then sent him to prision. The case is unpublished but can be found at:

Tatum v. State
--- S.W.3d ----, 2005 WL 1189359
Tex.App.-Fort Worth,2005.
May 19, 2005 (Approx. 6 pages)


It was a 2-1 decision and I expect that a PDR will be filed. If I had it to do over, I probably would have just flown the probation officer from Michigan down here.