Probation revocation hearing, D pled true to violations, sentenced to 180 days in jail. Sheriff (now deceased) let him out after 27 days. Is there no recourse for this kind of nonsense?
Presumably this is not a one-time event but reflects a general policy of ignoring the court's order and art. 42.032 sec. 2 and 6, CCP. It is likely a prevalent problem around the state. It is also likely official misconduct, warranting at least the threat of a removal suit, but you quickly enter the political arena. Obviously since your sheriff died in the meantime, your best hope is his replacement sees his duties differently. Perhaps a writ of mandamus or even prohibition would work in each individual instance, but unless you want to declare war I guess you throw up your hands and say, "sure wish we had a sheriff who knew how to count".
[This message was edited by Martin Peterson on 10-04-02 at .]
We had a similar problem with jail time being served as a condition of probation which, of course, is to be served without any credit for good behavior. We changed our court orders to reflect, not only the 30 day sentence for example, but also to include the actual starting date and ending dates for the sentence. In other words the order would read something along the lines of "the defendant shall serve 30 consecutive days in the Polk County Jail commencing at 5:00 p.m., January 1, 2002 and ending at 7:00 a.m., January 30, 2002." That seemed to solve our problem. It's certainly clear what the court is ordering and if you get into a mandamus action against your sheriff it might be advantageous to have very precise language.
I hope your new sheriff stays on the same sheet of music with you. The speculation below would be very, very unpleasant.
I learned a quarter a century ago that a Sheriff has broad power, if he or she wants to use it. When prosecuting in East Texas many years ago I got a "good old boy" sentenced to 5 years TDC and won the appeal and threw him into jail to await transportation. I was driving to work soon thereafter and saw him driving down the road. I swung by the Sheriff's Office and was told that he was now a "county wide trustee" ...
If you can't do it the easy way (which is a very, very politically incorrect way), i.e. the District Court judge insist that his orders be followed, then have you considered getting creative ... turning up the heat with 90 days in the State Jail as a term and condition; "shock probation" instead of county jail time; restitution centers; SAFP; Boot Camp (SAIP); Intermediate Sanction Facilities; max out the community service restitution hours; ... Turning a State Prisoner out of jail has got to be tougher for a Sheriff now days and ... somebody else is feeding and housing them while they are doing the jail time to await transportation. That might be the sheriff's big concern and this would meet that objection - the State pays for the prisoner. Doing this would also get the defense bar motivated to find a way to have the sheriff let their clients lay around his jail for the full 180 days.
If one is not ready to go for a suit to remove or mandamus the Sheriff and the District Court Judge won't flex the contempt muscle, there are few other options.
One exotic possiblity - The big hammer (but again politically incorrect) would be to file a motion to revoke/adjudicate for failure to do the jail time and create a situation where the Sheriff would have to appear as a witness for the Defense to explain it was not the Defendant's fault and explain under oath why he isn't obligated to follow court orders. If the court revoked, it could create an interesting appeal and/or writ issue. The failure of the Defendant to do the jail time could arguably be laid at his feet. He could have sued the sheriff for damages for "violating his right" to do what the court ordered by kicking him out of jail under color of law, he could have applied for a writ of mandamus, ... Put the burden on the criminal doing community supervision to insist the sheriff comply with court orders. If the defendant doesn't want to put the sheriff in the hot seat, let the defendant do the prison time.
However, cracking down - going back to court and amending the terms and conditions of those unlawfully released early from jail as a term would seem to be the more practical solution - lay the maximum community service hours on them; hit them with curfews; pop them with SAFP; restitution centers; intermediate sanction facilities; electonic monitoring; ... It can be done without a hearing if the defendant agrees to the modification. If the defendant wants the hearing, consider whether it should be in the form of a motion to revoke/adjudicate as set forth above or just do a straight up modification hearing and let the Defendant whine in open court that we are picking on the Defendant just because the Sheriff wouldn't do what the Court ordered.
You don't mention the voters in any of your solutions. Surely your local newspaper would find it interesting that prisoners aren't being punished as ordered by the judge or jury.
Could you ask your county auditor, if you have one, to audit the situation and release a report?
Just to make it clear, our previous (now deceased) sheriff caused the problem. I didn't find it out for some time. Now the BG is before us again on another offense. I was trying to figure out some way to make him do the 180 days he didn't do because the dead sheriff let him out almost immediately. Again, thanks for all the help.
