Does anyone have a District Judge who requires probationers to report to the court for a "status hearing" wherein the probationers are taken by the court into chambers, ex parte of the State and victims, to review their status on probation? Don't get excited, there is no allegation of tabloid quality judicial misconduct, but we don't have a model to refer to, and can't find any statutory or case law precedent for this new procedure.

"The judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may, at any time, during the period of community supervision alter or modify the conditions." 42.12 sec. 11(a). Plus, since we are talking about a contract between the judge and the defendant, are they not entitled to private negotiations? I see nothing in the statute that would prohibit this and it must be remembered that probation started out as a very informal arrangement directly between the court and the probationers.

Well, let's remember that the judge is -- a judge. That means he has an ethical duty to remain impartial before hearing evidence and making rulings. He also is prohibited from receiving ex parte communications -- meaning information that is not subject to being tested through adversarial challenge.

Admittedly, the judge has been put in an awkward position by being told to oversee probationers. But, that issue seems to be resolved by having the judges collectively appoint a chief probation officer and by delegating the information gathering function to that official and his employees.

I've wondered about this issue. If I were a judge, I think it would be tempting to get more directly involved by having such one-on-one conversations. But, ultimately, it is in conflict with a lot of other principles.

So, I guess I would say that the judge may not indulge in such conversations. The judge, of course, should be free to require probationers to come to open court and have a status hearing on the progress of their rehabilitation. I wish more judges would do that because then they could provide encouragement for those probationers who are doing as told, rather than always hearing about those probationers who have violated the conditions.

Sounds like a recipe for disaster, indictment even. Someone, somewhere will accuse that judge of something. It will certainly happen after that someone flunks out of probation. Only then will we be told that the judge solicited sex, or drugs, or money, or forced the person to attend a certain church, or leave a certain church, or whatever. And there will be no record, no witness, no one to say otherwise. Someone just hasn't thought this out very well.

I did not mean to imply it was a good idea, just not patently illegal.

The dilemna begins in that our judge is now making recommendations to defendants in closed chambers about doing more community service if they are not employed. Sounds as if probationer is being told by the judge to do something different than originally ordered to do on modification.

What about CCP 42.131 which requires probation to notify the victim of any hearing or proceeding in which the defendant's probation may be modified, or revoked?

The most interesting aspect is the so-called "status hearings" were listed on the court's daily docket and when the prosecutors were going to remain in the courtroom to listen, the judge removed the hearings to his chambers with no record. I can already hear a probationer during a revocation saying the judge told me in chambers I didn't have to do certain requirements in the same manner. Certainly makes the judge a witness and no longer an unbiased participant.

The prosecutor should not remain silent. He should object on the record to the ex parte proceeding. Your objection should be on behalf of the State and on behalf of your interest in protecting the defendant's due process rights.

It's a difficult moment for the prosecutor, because it will obviously create hard feelings between judge and prosecutor. Perhaps it is the sort of thing that the elected DA should speak to the judge about privately before making a public objection.

Another prosecutor pointed me to the case of In re Thoma, 873 S.W.2d 477 (Tex. Rev. Trib. 1994), in which a judge was defrocked over dealings that sound eerily similar to this situation.