A lot has been said on this topic, but I felt rather than putting this post under one of the earlier headings it probably merits its own. HB2193 is a "mixed bag". With all due respect to those who intend to urge Gov. Perry to veto a bill supported by some committee chairmen and that was the subject of a floor debate, I think everyone should consider that you will be asking for some good features to be thrown away with the bad (since I am not aware of any partial vetoes for this type of bill). Specifically, I would reference the following: (1) those convicted of murder cannot receive a suspension of their sentence from a jury, (2) the "Juvrud problem" in sec. 5 of 42.12 is solved, and (3) the judicial immunity issue with respect to operation of community supervision is addressed.

Martin, are you finding that juries in your jurisdiction are just giving away probation for murder? I've not heard anyone having such a problem. And, are you trying state jail felony offenses to a jury? Yikes, you must have some free time.

And, frankly, I'm not too worried about judges needing any more immunity than prosecutors. Now, if they want to extend absolute immunity to us for the good advice and work that we do for law enforcement, give me a call.

But, hey, you just keep on looking for the silver lining, buddy.

The fact that there is currently no restriction on when a person can be released from deferred adjudication may not be much of a problem (since everyone will now expect release at one-half of the term), but I do think the amendment addresses an unintended omission from sec. 5. No, murder sentences are not often probated, but the chance of probation certainly encourages a defendant to choose a jury trial (and the coincident claim of self-defense). Plus, a probated sentence for any murder is arguably unjust and the change should cut down on jury selection time and the striking of some jurors the prosecution might like to keep. There is no silver lining in the act, but its author was not completely misguided and I think the public could probably live with the "bad" changes. If the bill is vetoed, then something even worse will almost surely arise next session and Keel and Whitmire will be there. I am not so sure about Perry. Even so, I do wish you good luck.

E

[This message was edited by BLeonard on 06-06-05 at .]

Well, I'm all for immunity for everyone, but that's not what is being offered. The immunity provision was not even part of the original bill and has nothing to do with making probation better.

The immunity provision was stuck on, as often happens with bills, when its separate stand-alone bill was not making any headway. So, I wouldn't be arguing that the provision is an important part of anything related to probation reform.

And, not to re-debate the issue, since no one debated it, but why should judges, who serve sometimes as administrators, be given such broad immunity in that role simply because they also get it when being judicial? Do any other administrators get that kind of protection? Again, as a DA, I do lots of, and maybe more than some judges, administrating and I don't see anyone getting in line to give us such immunity?

Anyone want to explain the special treatment?

And, the federal judge only said a lawsuit could go forward. Again, that is no different than the types of lawsuits that regularly go forward against police officers and prosecutors who make arrests or give advice about making arrests. It doesn't mean, and rarely means, that the police officer, DA or judge will be held liable.

If we are to follow up on the logic of the bill, which claimed to improve probation, why wouldn't we want to encourage judges to get more involved in supervising the work of probation departments by leaving them exposed to liability if they ignore their jobs so much that bad things can happen?

I'm just asking some questions here. Anyone got any answers?

E

[This message was edited by BLeonard on 06-06-05 at .]

Yeah, the little program that exposes me to liability is called intake. I encourage officers to contact a prosecutor before or soon after they make an arrest. Our prosecutors, like many throughout the state, give advice that causes police to make an arrest or release a suspect.

And, when we are wrong, we are exposed to civil liability.

Travis County's DA office recently showed the rest of us just how troublesome that can be. Several years ago, prosecutors helped advise police to question a juvenile regarding her alleged injury of an infant, causing the infant's death.

Relying on that advice, police questioned the juvenile, believing she was not in custody, even though she was under the supervision of CPS. They obtained a confession and twice used the confession in a trial that resulted both times in her conviction.

On direct appeal, a court of appeals held that the confession was inadmissible because the juvenile was, in fact, in custody because of the unique facts surrounding the CPS supervision.

So, juvenile and her lawyers go off to court, declaring her rights were violated and someone must pay. The federal 5th circuit court of appeals recently held that the prosecutors did not enjoy absolute immunity because the advice was given before the case was in court. That meant they had to face a trial.

But, all was not lost. The 5th circuit also found that the prosecutors (and police) were not ultimately responsible for the juvenile's conviction because a judge (who had absolute immunity for his decision) is the person who held the confession was admissible, even though that decision proved to be wrong.

Interesting. Judge got absolute immunity. Prosecutors and police got good faith immunity. Seems like this discussion is right back where we started.

You can read this opinion by dowloading the PDF at this link.

E

[This message was edited by BLeonard on 06-06-05 at .]

Well, now we are getting somewhere. As you suggest, some would agree that judges might not be the best at picking programs and running them. But, I also bet they don't want to give up the control, eh?

Judges, at least in my county, also appoint and set the budget for the county auditor.

Are there any other administrative jobs done by judges?

Our District judges routinely hire, fire, and set salaries for their court reporters. Some also participate in the slection of a director of Community Supervision. Something to keep in mind -- judicial immunity seeks to avoid the chilling effect that potential liability might have on a judge acting in his judicial capacity. That makes sense; we want a judiciary that can exercise available options without fear of constant lawsuits. Authority = responsibility. Perhaps the solution to the juvenile justice oversight role, and the potential liability associated therewith, is to have non-judges serve as the overseers. On a related note, I seem to recall a judge in Bexar County refusing to take any action as a member of the juvenile board, claiming to be concerned with liability issues. I cannot think of a less rational response, since the judge has not (cannot?) resigned from the juvenile board, his failure to perform his duties may actually result in greater liability.

With regard to the statutory designation of duties concerning a CSCD, it should be borne in mind that a federal court resolving a civil rights claim may look to state law, but is not bound by it except for determination of a relevant policymaker. Federal immunity law is just that -- federal. I'm not sure the new statute will have any real effect, since Forrester v. White holds that a judge's administrative functions (such as employment decisions) are not protected by absolute judicial immunity, and cases such as Stump v. Sparkman and Mireles v. Waco instruct federal courts to analyze the actual function being performed by the judge, not simply its appellation.

Scott, you may well be correct that the new law would not change a judge's administrative decisions due to continued fear of federal liability. But, obviously someone thought the amendment was beneficial. My only point has been that the act is not rotten to the core- though it has many, many warts.

To me, the best argument against the act is that it will almost assure that victims receive less restitution. Should not that be a primal purpose for placing someone on community supervision? We already know that no one's parole is revoked for a failure to pay restitution and that removing the threat of incarceration due to failure to pay is taking away the last arrow in our quiver.

I guess we can expect to have an awful lot of MTR, MTA hearings prior to the 1/2 term deadline based on failure to pay restitution- or a lot of angry victims. But, on second thought, they will be angry in either event (and no better off). Maybe it should be called the criminal debtors relief act.

OOPS. Looks like hurting Rep. Keel's feelings may not be a matter for Perry's concern. Keel has announced he would rather be an appellate judge come 2007.