Has anyone seen any clear law on the issue of whether a judge may grant probation to a defendant who is sentenced by the jury, if the jury does NOT recommend probation? While I realize most judges would not grant probation to a defendant who had failed to get it from a jury, does the law authorize it?

Same issue: If a jury sends a defendant to prison, may the judge wait a few months and then release the defendant on "shock probation?"

I could swear that I had seen a case on this before, but I can't find it now to save me.

The answer is in the clear language of article 42.12, sec. 6, authorizing a judge to grant shock probation only for a felony sentence "imposed by the judge of the court". There is no authority for a judge to grant probation, shock or otherwise, for a sentence imposed by a jury.

I think old versions of the statute authorized a judge to give probation later but those were deleted, in part because of abuses such as you suggest.

If a judge is thinking of doing it, you should consider filing a writ of prohibition. If that doesn't work, appeal the decision, as the judge is illegally modifying a sentence.

The judgment must provide "that the defendant be punished in accordance with the jury's verdict as to the proper punishment". Art. 42.01 sec. 1 (8). Furthermore, the implication of sec. 4 (a)(b) of art. 42.12 has to be that the jury must recommend community supervision before the judge may place the defendant on community supervision. This is true even though sec. 3(a) of the statute speaks only of "after conviction". The court simply has no authority to suspend a sentence, except as provided by sec. 4, when the defendant has elected to have the jury determine his punishment. Not sure there is any case that specifically says all of this, but I am sure there is no case which says otherwise.

I've seen a judge consider granting probation notwithstanding the jury's verdict a long time ago, but he ultimately decided that overruling a jury is a very un-Texan thing do.

When I worked in another county, I had a judge not only consider probation but grant it in a SJF before the law was changed to allow that.

After the jury verdict, he announced that he would hold another hearing (tri-furcated trials?) to determine whether to award probation. 10 of the 12 jurors stayed to hear what he was doing and were furious when he gave the guy probation.

The elected DA decided not to pursue an appeal but confronted the judge later in his office. Glad I wasn't there for the confrontation.

Guess he didn't understand it was an un-Texan thing to do.

42.12 Sec. 15(a)(2) seems to allow imposition of a state jail sentence imposed by the jury. This section applies specifically to state jail sentences. By contrast, a jury is specifically prohibited from recommending probation for state jails under 42.12 Sec. 4.

[This message was edited by John Rolater on 08-10-06 at .]

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Originally posted by John Rolater:
42.12 Sec. 15(a)(2) seems to allow imposition of a _state jail_ sentence imposed by the jury. This section applies specifically to state jail sentences. By contrast, a jury is specifically prohibited from recommending probation for state jails under 42.12 Sec. 4.

[This message was edited by John Rolater on 08-10-06 at .]

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That is the way the law reads now. The law was changed just recently for the very reason we have been discussing. When they first came out with SJF's the law was that probation was mandatory. Then they modified to make probation optional in most cases. But the law was that juries could not recommend probation. PERIOD. When the legislature drafted the law, they forgot to look at how it dovetailed with other laws on granting probation so for a while, unless you went to the judge for punishment, you could not get probation in a SJF (unless, of course, it was one of the mandatory probation drug offenses.)

It was not an accident that juries could not give probation. The original idea of a SJF was to give judges (not juries) more control over low-level, nonviolent property and drug crimes, including placement in and out of state jails and community correctinal facilities (restitution centers, treatment centers, etc.). With the collapse of the state's support for "alternatives to prison" (although the phrase is once again surfacing with the sensitive members of the Leg), last session was the last straw when the Leg finally just gave up and made SJF just like everything else.

Shame on the Leg for promising something and failing to support it. When you hear cries this session for more alternatives to prison, ask them what happened to the SJF.

I recall reading a decision many years ago where the appellant appealed his 1st offense DWI conviction. The Court of Appeals went thru each of his points, and affirmed the lower court. At the conclusion of the opinion, the court affirmed the conviction.

Before closing the opinion, however, the Court of Appeals noted--apparently without any complaint from the State--that the jury had imposed a sentence of 1 year in the county jail, which the judge had converted into a probation sentence. The court of appeals said the trial court did not have authority to do this, and returned the case to the county court, to impose the sentence set by the jury.

I remember thinking how bummed out the defendant must have been to learn that not only was his appeal denied, but because he appealed and thereby alerted the Court of Appeals, he was going to have to do a year in the county jail.

If I recall correctly, the case was out of Wharton County.

I found an old case from the 50s in which the court held that probation was not allowable when the jury assessed punishment without a recommendation. 42.12 was changed to allow it in the 60s when section 3c read that the failure of the jury to recommend probation did not prevent the judge from granting it. The law was amended again in the late 80s, and this language was moved around, but remained in the statute. With the Penal Code re-write in 1994, the language was REMOVED from 42.12, and I take the position that the amendment must be meaningful, so NO PROBATION FROM THE JUDGE IN CASES WHERE THE JURY FAILS TO RECOMMEND IT.

If anyone wants all the lengthy cites for this stuff, I'll pull the file back out and provide them.

Wes, please send me a copy of your research. Your summary matches my memory (at least back to the 1980's). I would like to put some portion of that in an update of Texas Sentencing that I am working on. I also recommend that you send the research to TDCAA and ask them to post it on the website somewhere it can be accessed by those who will undoubtedly ask about in the future.

Paul is right. I forgot about the Harris County DA's bill last session to give d/w neg. homicide defendant's the possibility of probation.

While not directly on point, there are several cases which state the broader principle that the court has no authority to alter the jury's punishment verdict. E.g., Nelson, 149 S.W.3d at 212-3. I find it very interesting that the courts were given authority under prior law to override a jury recommendation that the sentence not be suspended. But that is exactly what former section 4(c) of the statute said. See also Martin, 823 S.W.2d at 730 and former art. 42.13 sec. 3(b). I do not remember this being done, however, at least not with any frequency. It seems to have been a remnant of the fact that only judges were initially given authority to grant a suspended sentence, or maybe juries were really harsh in the early '60s. In any event, art. 42.12 now seems more consistent with 37.07 and 42.01.

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Originally posted by John Bradley:
Wes, please send me a copy of your research.

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John, shoot me an email address and I will send you what I put together. I'll certainly share it with anyone else who is interested also.

Thanks Wes for the research you sent us. I am dealing with this very issue tomorrow morning in North Texas. Two weeks ago the jury brought back a pen time verdict and the judge set it off for sentencing and ordered a PSI. (?) I have some very angry jurors. I'll keep you guys posted.

[This message was edited by Angela Goodwin on 10-18-06 at .]

Might want to work on a draft writ of prohibition.

Update on the sentencing: The courtroom was packed, including 11 of the 12 jurors and representatives from three media outlets. The judge followed the jury's verdict and ordered pen time.

We just had this happen in Amarillo. I'd like to see the material you put together, Wes.

Email address is in my profile.

I, too, would like to see your research; my email address is also in my profile. We just had a judge grant shock probation in an IA case where the jury sentenced the defendant to six years without any CS rec. We are now considering whether to appeal. We have a good record and some good arguments. My fear, however, is that we will lose and the floodgates will open--well, at least here in Hidalgo County.

Potter County, did you appeal?

When I worked in Lubbock, we had a judge who gave a deferred after a jury verdict. (The defendant had opted for the Court to assess punishment.) The State appealed the case, and the Amarillo Court of Appeals ruled that although the State was correct in its assessment that the judge's action was improper, the deferred adjudication on its face was not "illegal," and therefore not an "illegal sentence." Therefore, they ruled that the State's appeal was improper, and that the proper remedy would have been to seek a writ of mandamus to force the judge to accept the jury's verdict of guilty and find the defendant guilty and assess a punishment within the statutory range.

It seems to me that the judge's duty to impose the jury's sentence is essentially the same as his duty to find a defendant guilty after a jury verdict.

So, be careful that you don't pursue the wrong remedy.