Ok. Here is the scenario. I had a defendant on defered probation with an MTR outstanding. The allegations were drug usage, non reporting, non payment of fines, etc. Judge adjudicates her and gives her SAFP.

Here is the kicker, she is pregnant with twins and SAFP refused to accept her.

Since she has already been adjudicate and given probation with SAFP is the judge barred from sentencing her to SAFP? Our office believes so, and that the only option availabe to the court is modifying her terms and coniditons.

We don't want her to continue on probation but we have no allegations to revoke!

Is my only option to get her to State Jail, (albiet as a condition of probation)to ask the judge to modify her terms and conditions and give her upfront time State Jail time as a condition of her probation?

Help!

Presumably at the time the court acted upon your motion to adjudicate it assessed the defendant's sentence (apparently a term in state jail). I do not believe the court can go back and modify that determination, except under sec. 23(a) (when the second probation is revoked). The court can probably modify the requirement that she serve a term of confinement and treatment in a SAFPF (since that has apparently become an impossibility). But, the issue is whether, without any new violations alleged, the court can modify under sec. 22. Clearly, if you got the defendant's consent to a modification you would be ok. But assessing confinement as a condition at this point without any new proceeding under sec. 21 is certainly problematic. This just proves you had better be sure the chosen sanction is available before you decide what to do with a defendant.

All of this is confusing but here are a couple of suggestions.

Art. 42.12, Section 10(a): permits the judge to impose any reasonable conditions and "may at any time during the period of community supervision alter or modify the conditions. Thus the judge has the authority to add SAFPF at any time as long as it meets one or more of the purposes contained in that section.

Finally, Section 15(e) permits imposition of a state jail term (90 days to 180 days) in a state jail if there is a violation of any type. The term would be ordered as an additional condition of supervision. That and all other "reasonable" sanctions are available to the judge.

Hope this helps. Judge Larry Gist

I meant to say is the Judge barred from sending the Defendant to State Jail (not SAFP)? Our office believes we are. Its problematic becuase we asked for State Jail and the Judge ordered SAFP. Now we have a chronic drug user who is pregnant with twins that may be released without any sanctions to do more drugs while pregnant(this was one of the allegations). At the very least we are going to ask the judge to modify with State Jail as a conidition.

Thanks for the help.

If your defendant is on suspended sentence probation for a State Jail case, the judge can impose any reasonable conditions that are designed to (1) protect or restore the community: (2) protect or restore the victim: or (3)punish, rehabilitate or reform the defendant. See Art. 42.12, Section 11(a)

If your objective is to get the defendant in a state jail for substance abuse treatment, the Legislature just eliminated virtually all of the drug probrams in State Jails across Texas.

Take a look at Section 15(d) and (e) as you might use one of these provisions to get the defendant in a State Jail for a specified time as a condition of probation supervision.

Another possible solution is in Section 15 (f) where you could revoke and order the sentence to be served. Then at the appropriate time, the judge could "shock" the defendant out of the State Jail and return her to community supervision.

Sure hope some of this helps. Good luck. Judge Larry Gist