Under PC 38.05 it states that you must be hindering the arrest, etc. of another "for an offense." The caselaw talks about what constitutes "an offense" since it is not defined. It appears that the courts are a little divided down a very narrow line. I have a set of facts that fit right in the middle.
Caselaw says, a warrant for a probation violation is NOT an offense but that a warrant for a parole violation is (the distinction by the court, although they admit their desicion may conflict with the probation case, is that a warrant for a parole violation is a revocation of the parolee's administrative release--"when a parolee is arrested for a parole violation, he is apprehended for the same offense for which he had previously been convicted and imprioned.") Additionally, I found a case that considered a warrant for arrest an offense where the person failed to show up for the sentencing after the person already pled.
My situation is a arrest warrant for a probation violation where the person received a defrd adjudication. To me, this is more similar to the latter two senarios... what is your opinion. Can I consider this "an offense" under the statute?
Further, even if it were a straight probation violation warrant, doesn't it seem wrong that the hindering statute wouldn't apply to someone preventing the arrest of another for a warrant based on this? Why is hindering the arrest on a revocation warrant any different?
FYI, these are all just court of appeals cases, I can't find any cases from the court of criminal appeals.
FYI on cases: Probation violation not offense: 800 sw2d 229 Parole Violation: 76 sw3d 659 Sentencing: NO. 07-06-0185-CR
Posts: 61 | Location: Austin, Texas, USA | Registered: January 18, 2006
I read 38.05 as making it an offense to hinder an arrest where there is any type of warrant, whether for a probation revocation or something else. That portion of 38.05 was added recently primarily because of the interpretation that a probation violation was not an "offense."
Posts: 171 | Location: Belton, Texas, USA | Registered: April 26, 2001
Rick is too humble to say it, but he got the additional language added to that section back in 2005 by means of HB 2104 (79th Reg. Session). By adding the phrase "or with intent to hinder the arrest of another under the authority of a warrant or capias," that bill closed the loopholes that used to be present in PC 38.05.
KPM, I'm guessing the caselaw does not reflect this recent change. Maybe you can make some new caselaw to clear it up?
Posts: 2429 | Location: TDCAA | Registered: March 08, 2002
That is how I read that new languange, but I wasn't sure when it was added into the statute (my offense is before Sept. 1 2007)--also I found it odd that the parole violation court didn't just use that language to justify the distinction...
Posts: 61 | Location: Austin, Texas, USA | Registered: January 18, 2006
A related question - Does 38.05 (a) require that an actual warrant be in existence at the time of the hindering? Hypothetical - A is told by the police that they are in the process of obtaining an arrest warrant for B and that its execution is imminent. A warns B and takes action to conceal B and to hinder B's imminent apprehension. The next day an arrest warrant is issued for B. Has an offense been committed?
Posts: 57 | Location: McKinney, Texas, USA | Registered: February 19, 2001
Was the hypothetical future warrant for an offense?
38.05. HINDERING APPREHENSION OR PROSECUTION.
(a) A person commits an offense if, with intent to
hinder the arrest, prosecution, conviction, or
punishment of another for an offense or, with
intent to hinder the arrest, detention, adjudication,
or disposition of a child for engaging in delinquent
conduct that violates a penal law of the state,
or with intent to hinder the arrest of another under
the authority of a warrant or capias, he:
(1) harbors or conceals the other;
(2) provides or aids in providing the other with
any means of avoiding arrest or effecting escape;
or
(3) warns the other of impending discovery or
apprehension.
the warrant and capias expansion... that will only apply to misdemeanors, right? If you look at 38.05(d) which defines what constitutes charging someone with a felony it doesn't include the warrant or capias language... it only says "under arrest for, charged with, or convicted of a felony"-- so if there is a probation warrant as the basis--is there no way to make this a felony?
Posts: 61 | Location: Austin, Texas, USA | Registered: January 18, 2006
