The bill passed on a voice vote today by the House (without amendment) on Third Reading, so focus your attention on the Senate now. I hope someone wakes up and recognizes what they are actually doing. There has to have been a reason why those convicted of state jail felonies were made ineligible for "jury recommended" community supervision back in 1994, but I guess everyone has forgotten the reason.

Well, for information purposes, here's how it's been explained to me by some of those in the Big Pink Building:

State jail felons were made ineligible for jury-recommended probation back in 1994 b/c SJF offenses were all mandatory probation cases. While that was relaxed in succeeding years, the ban on jury probation never got changed. Now it is (finally) being changed -- except for the mandatory-probation drug defendants that come under the 2003 changes from HB 2667, and which are still prevented from going to the jury for punishment.

I add this not to say anyone has to like it, but to try to shed some light on the inner workings behind the bill's current form.

Of course, the "mandatory drug offender probation" people argue that even though the jury sentences them to confinement, the judge must then override the verdict and suspend their sentence after the 2003 change. So they are not currently afraid to request a jury trial.

I, for one, do not think the current situation was a mere oversight when mandatory probation was abandoned in 1995. Also, the courts have found the original "choice" had a rational basis. Anderer, 47 S.W.3d at 66. I just think there are good reasons to keep the law as it is- whether that was the original rationale or not.

It should also be noted that the language of the bill never received a true public hearing, since it was substituted on the day it passed out of the committee, i.e. without any witness testimony. Not the right way to make a wholesale change in the law.

[This message was edited by Martin Peterson on 04-24-05 at .]

The opportunity for the issues I raised to be discussed in the Senate committee came on May 3. I was unable to be present. Interestingly, the Harris County District Attorney's Office presented testimony in favor of the bill. In fact, Warren Diepraam's very brief comments was the only testimony heard by the committee and he did not seem to recognize the language substituted by the House committee. Since Harris County will likely be affected more than anyone by any increase in the number of state jail jury trials, I guess my concerns are overblown. It is almost certainly now too late to prevent the amendment to 42.12 sec. 4 from becoming the law. But, contacting individual Seantors might still cause some debate on the Senate floor.

The state jail felony probation was intended to be under the control of the judge. So, jury was not given authority to decide the issue. That was very intentional throughout the process, even with the disappearance of automatic probation.

For reasons not entirely clear to me, some people believe a jury should have a say in that decision. I disagree and believe it will damage the SJF as a punishment range and create more jury trials for little purpose. But, Martin, it looks like its just you and me on this.

This is headline news when John and Martin are in agreement! I can only conclude that they must be right.

Au contraire my friends, I was well aware of the changes to the original bill.

The history of the bill is that there is currently a problem whereby a defendant convicted of a SJF with a deadly weapon finding can not get probation from the judge or the jury, resulting in first offenders autamatically being sent to prison in these sorts of cases. It does not make sense to me that a first offender who intends to and does kill another can receive probation from a jury, yet somebody who accidentally kills another in a traffic wreck goes straight to prison (as much as I do not like the concept of another getting probation for a homicide, it is a fact that we have to deal with sometimes). I do not think that if you were charged with negligent homicide for a traffic accident and some *+!%^ prosecutor (like me) tagged a DW allegation onto the indictment, you would be too happy to learn that you were going straight to prison because it was not intentional. I think you would be even more upset to learn that some judges in some counties will not follow that law and those people get probation resulting in potentially illegal convictions. Therefore, why not let a jury decide? Why should we rely on a quirk in the law to force people into prison rather than rely on the sound judgment of a jury? That seems to have been the original concern behind the filing of the bill.

The bill has been changed to apply to most SJF cases. I know that nobody is advocating reliance on a judge's threats to avoid giving a defendant a trial. However, that same judge can inform a SJF offender that he/she can assess up to 180 days in the county jail as a condition of probation and not give credit for time served, place extra hours of community service, a guilty verdict will make you a convicted felon, etc. There are still plenty of "incentives" to avoid a trial.

Lastly, when trying these cases like I do, they normally involve otherwise good citizens who commit a negligent act: bus driver driving through a cross-walk without looking; firefighter speeding to a mostly extinguished fire, police officer speeding at night without lights, father backing over his child, etc. and I think that a jury may have difficulty following the law knowing that prison is the only option.

Bottom line is that I do not think that the flood gates will open up. There is a valid reason for the bill and the changes did not alter my opinion. There are plenty of other ways for to avoid a trial on a SJF.

Warren, no one disputes that the original bill would have been salutary and that the current law does represent an inequity with respect to 12.35(c) offenders. But why accept the loss of a rationally based distinction with respect to other state jail offenders in order to cure that problem? The "up front" card will have bargaining power only when judges start assessing up front time- something which generally does not occur in my jurisdiction. Plus, if that happens we are hardly solving inequities or prison crowding. I hope I am wrong about the effect of the bill, but it sure seems like plea bargains will have to be weakened to counteract the new temptation offered to go to trial. Almost certainly we will have to go through a few trials before the "up front" threat has any value to my defense bar. And I am afraid the weaknesses in burglary, forgery, DWI w/child and drug possession cases will be what is actually demonstrated.

We continue to make wholesale changes to a law and impose statewide policy for an individual's disagreement with the outcome of a single case. Warren, you could have dropped the DW finding and offered probation if you thought it was worthy.

Points well taken.

Harris County does seem to have the most potential to be affected, but I don't see the flood gates opening (having been in the courts and working with SJF offenders since their inception, that threat has rarely worked)and I believe that if we argue for prison time and the turd deserves it, a jury will give it. Hopefully, if a bill passes it will have these concerns sorted out.

PS I do not abandon deadly weapon allegations and if you bug your elected reps, please make sure they are also aware of the big DWI bills including HB 51!!!

The bill is now on its way to the local and uncontested calendar for Senate Floor action. Beware that the change will be retroactive, so get busy disposing of any state jail cases that you can between now and September (since the effective punishment range for the offenses will be going down).

It seems we are lurching from revision to revision in the law to alleviate the panic the Leg feels due to the impending overcrowding problem. No thought is given to possible consequences. The state jail felony category is going to turn into a fourth degree felony and nothing more.

Oh, we will wish it was a fourth degree felony. It is quickly on its way to a misdemeanor. But, don't worry, we are only one crime wave away from restoration.

John, I saw your comments this morning regarding probation reform in the American Statesman. Well stated! If I read one more article about all the money the Legislature is going to save by shortening probation terms and cutting down on the number of "technical revocations," I think I'm going to puke!

I'd bet my bottom dollar that after these so-called "reforms" pass, there will not be one extra penny budgeted to community supervision departments to fund all of these wonderful rehab and increased surveillance programs mentioned in that article. What we'll have is more probationers being supervised by the same number of probation officers who will be paid the same salaries they've always been paid. The Leg. can't even figure out a way to provide additional funding for schools and reduce property taxes. They screwed CPS two years ago and they're about to do the same thing to probation departments.

We've already discussed the fallacy of the "technical revocation" argument. I have yet to read one article in the media which explains what "technical revocations" really are. Don't know about y'all but in my county "technical revocations" include flat out absconding from probation, positive tests for meth and cocaine, sex offenders refusing to take required polygraphs, and so on. I'm sorry, but probationers who engage in such conduct are either recidivists or about to become recidivists. That is absolutely a public safety issue and I hope that when the next budget savings induced crime wave hits--and it will--the media has the good sense to report the cause of this fine mess we are about to be in.