I tried a public official a couple of years ago and she received 10 years pro on a 3rd and 2 probated for 5 on a state jail. The appeals are over and I received a mandate a couple of weeks ago. She hasn't been reporting, etc., for the last 2 years during the appellate process. Do the probationary periods begin once the mandates are issued or did she just get a free ride for the first 2 years of the probationary periods? Any insight would be appreciated.

Just did that. The probationary period does not begin until the mandate is received from the Ct. of Appeals.

I'm curious as to what effect the failure to file an appeal bond has where the sentence is suspended. Does the defendant immediately become subject to the terms and conditions of probation? Or is everything "stayed" pending the outcome of the appeal? What if there's a violation or new offense committed while the appeal is pending? I've had this situation come up a couple of times and I never have been able to find a case or any authority that explained what happens when you get into this gray area.

Ex parte King, 550 S.W.2d 689, 690 (Tex. Crim. App. 1977); McConnell v. State, 34 S.W.3d 27, 30 (Tex. App.�Tyler 2000, no pet.).

In general, where the sentence (order for confinement) is suspended (or further proceedings are deferred under art. 42.12 sec. 5), there would logically appear to be no need for someone to post a bond under art. 44.04(c) to secure their liberty during the pendency of the appeal. And the cases make clear that the defendant need not comply with the conditions of supervision either, since the order is not final.

But, Lee, you raise the interesting question of why the initial commitment under art. 16.20 or art. 17.27 does not remain in effect when a defendant chooses not to recognize the validity of the order entered after the trial. The sureties on any pre-trial bond are normally discharged after sentencing. But, this appears not to be true until the probation order becomes "final" (even though the primary purpose of the bond- being to insure the defendant's appearance at trial- has been satisfied). See Reed, 702 S.W.2d at 740 (stating "the surety on an appearance bond is relieved of liability when the probationary period commences").

Thus, to me, it appears that unless surrendered in accordance with art. 17.16, someone appealing from an order for community supervision is entitled to remain at liberty on his original bail bond. But, if he were surrendered by the surety, then it appears he should have to post a new bail (but, technically not an "appeal bond"). The order authorizing his release from custody on terms of supervision should not be sufficient to support release without bail, since the defendant is otherwise treating it as a non-final judgment and is not required to comply with those conditions of release during the pendency of the appeal. One court has noted that it was by posting an appeal bond, that she "thereby delay[ed] the commencement of her community supervision." Burleson, 97 S.W.3d at 642 fn. 1.

For a related thread, read this link.

Thanks a bunch for the info. My probation office is going to think I'm a legal whiz!

Even more discussion can be found at this link.

Okay, since the defendant does not get "credit" on their probationary term for the time of the appellate process and their probated term does not begin until the mandate is handed down, is it recommended that I nunc pro tunc the judgment and plug in the mandate date for the beginning date of the sentence? Otherwise, the judgment does not reflect the true beginning date of the probationary term. Any suggestions along these lines? Thanks.

Some judgment forms have a section below the judge's signature that says: "Mandate received: ________________" and "Sentence begin date: ________________" . I think the judge could add this information below the judge's signature for clarification.

We had a guy sentenced to 10 years in prison for arson with a DW finding. Guy appeals. Four years later, appeal is finished. He has been out on bond, so judge brings him in and sends him off to prison. A few months later, I get a parole notice.

Seems the parole board thought he had been in jail the whole time. So, we did a nunc pro tunc, doing what is suggested above, and clarified the start date of the sentence.

Now, it will be five years before he is eligible for parole.

Okay, our judge granted our nunc pro tunc motion and he ordered the probationary sentence to begin when the former public official's appeals were final. Now the crook has filed a writ (which we expected) and she has also appealed the nunc pro tunc motion ruling. AND she has told her probation officer that her attorney has told her that she doesn't have to report, pay, etc., and she hasn't done any of those things even though her convictions have been final since December. I realize that neither her appeal of the nunc pro tunc nor the writ affect the finality of her convictions and that she should be reporting, paying, etc., but here I am... Any suggestions on the best and quickest way to proceed??? It makes it even more difficult than usual for the reason that I tried the cases before a retired visiting judge (who lives several counties from my jurisdiction) since one of my judges didn't contest a motion to recuse by the defense. I'm leaning toward a motion for the crook to appear in court so that she could be ordered to get with the program on her probations. This is a little more attractive for the reason that the trial judge did not originally order any community service hours and didn't make a finding which excused same. I could also file motions to amend her probations to add community service hours and get it all heard at one time. I'm thinking the judge might order a bunch of hours now behind a motion to amend her probations since he's probably pretty fed up with her and her antics. But my gut tells me to just urge the probation officer to file a request for a petition to revoke with the judge... What do y'all think?