Our county is in the process of creating a DWI / Drug Court.

The set-up our judge is considering is modeled after other counties where the judge has a meeting with the "team," including a prosecutor, weekly before "court" is held. The team meeting is closed, so neither the defendant nor his attorney is present.

QUESTION: If the prosecutor is contributing to the team meetings before "court" is held, is that an ex parte communication?

Some venues do their Drug Court as a pre-trial diversion, but our judge wants it to be a part of probation. So there really is a "matter" as used in Rule 3.05.

After researching this, the answer appears to be: Yes, it is ex parte and a violation of Rule 3.05, unless it falls into the exception labeled (b)(3) for oral communications "upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer."

But it makes no sense that I can say absolutely ANYTHING to a judge in a closed meeting simply because the opposing party had prior notice that I would be telling the judge secrets. The judge will exclude the defense from the meeting.

If you do not know what DWI / Drug Court is . . . generally, it is very similar to probation but the offender has to get substance abuse treatment, report more often and report directly to a judge. In many cases, the offender reports once a week in the courtroom so a judge can praise him, reprimand him or sanction him. Sanctions can include jail time and expulsion from the program.

Two theories behind the team meetings are (1) the meeting should include the prosecutor who safeguards the public, and (2) the meetings should be closed so discussion will be open and non-adversarial.

How is this handled by other prosecutors?

Call Judge Maria Herr with the 186th District Court in Bexar County and see how she conducts her drug court. I believe defense attorneys are included in the staffings that occur prior to the actual court.

Back when I worked in the Travis Co. drug court, they retained a defense lawyer to participate in those meetings with the judge, prosecutor, probation officer, counselor, and others.

Call ADA Mark Hanna and Director of Community Supervision and Corrections Leighton Iles (or his assistant who handles the drug court) in Fort Bend. They have one of the most innovative programs in the nation.

You could also go to the Austin American Statesman website and do a google for Drug court or Iles and find a story they did back in 2005 on the Fort Bend County Drug Court when now retired State District Judge Bradley Smith was the judge of that court.