Good evening,

I am only an investigator so please excuse any errors:

We have a defendant who after trial, was sentenced to 7 years in TDCJ for Indecency with a Child – Sexual Contact. Since that time we have been notified of his intent to appeal. We had a hearing for a bond to be set and he is not eligiable for bond, pending appeal, under 44.04(b) CCP because it is a 3g offense.
Now this is where we are having the problem.

Prior to this hearing he was set to be transferred from our county jail to TDCJ but due to the hearing for bond being set, we stopped his transfer so that he could attend this hearing. Now since bond was denied and his hired attorney withdrew, he is currently awaiting an appointed attorney for the appeal. We are wishing to have him transported to TDCJ so that he isn’t taking up a bed in our small county jail.

I was contacted by the Sheriff today and he stated that TDCJ refused to take the defendant because he has an appeal pending and less than a 10 year sentence.

I contacted TDCJ admissions and they confirmed that he isn’t eligible to be transferred because of the reasons I was informed of but that he CAN be if/when: his appeal is final, he consents to the transfer, or the Judge signs an order stating that the defendant will consent to the transfer. It appears that TDCJ is basing this decision under 42.09 Sect. 4 CCP which states that they can only be transferred for reasons such as these.

So now to the question: Does anybody know how to have a defendant transferred to TDCJ without their consent [42.09 Sec. 4 CCP], with a sentence of less than 10 years, who is not eligible for bail pending an appeal [44.04(b) CCP]?
Sorry for the long drawn out set of facts! I am posting trying to find what other counties have encountered so that I can report back to my DA and Judge. Thanks in advance!

Clint

Perhaps you could approach the defendant's appellate lawyer and obtain defendant's consent to be transferred to prison. You could inform the defendant that in prison he will have access to opportunities for education, work, recreation treatment, etc. Seems like the defendant would have to come to realize that prison will be more comfortable than sitting in a jail cell all day.

Defendant is not eligible for parole for at least half of sentence (3.5 years). One would hope the appeal wouldn't take that long, but that could get expensive for the county.

Since the facts state that the defendant does not have an attorney, attempting to contact the defendant's appellate attorney does not appear to be a workable solution. It has been my experience that most defendants would rather serve their sentence in county jail for as long as possible, especially in a small county where the defendant may be a "trustee", gets to have visits with his family members, doesn't have to worry about gang activity, etc. The defendant may also be concerned about his safety since he has been convicted of a sex offense - a concern that is likely not as great in the local jail. On the attorney issue, the judge is probably familiar with the local attorneys and may have a good idea which attorney will be more likely to cooperate with the "consent" to be transferred issue. I am not aware of a provision that permits the transfer to take place without the consent of the defendant.

Legally, the only way to move him is at his request while the appeal is pending and a sentence of 10 years or less. Once the appeal is final and mandate issues, though, TDCJ must accept him.

I am aware of one case where a district judge ordered TDCJ to take someone anyway. They did, but then his lawyer complained, and they brought him back until the appeal was final. I believe they gave him a copy of the mandate as he boarded the bus.

This would be a good area for some legislation. For crimes that are 3g status (no parole until 50% served), perhaps there could be an amendment that makes transfer automatic, even for sentences of 10 years or less.

How about this--any prisoner held on state paper, say parole violation or felony conviction, is the financial responsibility of the State, not the county?