Rep. Jerry Madden passed HB 1678. A significant part of that new law will, effective 9/1/07, require judges to give defendants credit for time served at inpatient treatment facilities following adjudication or revocation of probation.

Yes, that's right. The defendant failed to live up to his part of the bargain, but he gets credit as if he already served the time.

Well, in Williamson County, we plan to make waiver of such credit a condition of any negotiated resolution of a motion to adjudicate or revoke. A defendant may waive any right, other than the right to a jury trial in a death penalty case. See Tex. Code Crim. Pro. art. 1.14. The Texas Court of Criminal Appeals has extended that right of waiver to include credit for time served due upon imposition of a sentence. Ex parte Olivares, 202 S.W.3d 771 (Tex. Crim. App. 2006); Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997). Therefore, I am confident that this waiver is proper in the law.

The waiver will avoid the many complications that will come from trying to carry out this misguided new early release law. Some issues that will be avoided:

How does a judge decide whether the treatment was "successful" (required for defendant to get credit)?

Who figures out how much time was "spent" in the program or facility (jail records will not be helpful)?

Who handles all the hundreds of new credit writs that will be forthcoming?

You might want to add this to your plea papers:

"Defendant also waives any right to credit for time spent in a substance abuse felony punishment facility or court-ordered residential program or facility."

[This message was edited by JB on 08-21-07 at .]

[This message was edited by JB on 08-21-07 at .]

I don't see why your plan wouldn't work. After all, since you are talking about negotiated pleas, I assume these pleas come with some sort of recommendation as to how much time to serve. The prosecutor and judge have always had the discretion to consider what the defendant has done while on probation when determining how much time to assess on a revocation.

All the legislature has done here is to try and take discretion away from the judge as to how to handle probation violators. Does the legislature think that our elected judges are so eager to fill up the penitentiaries that they have to be leashed?

If these elected judges are doing what their constituents want, where is the disconnect between the courts and the legislature, who are elected by the same people? Does it come down to nothing more than local money vs. state money?

This is about money, period. The Leg simply decided to reduce a sentence by subtracting a number of days from the time of confinement. In some sort of reverse bizarro world, though, the claim is made that this credit will encourage defendants to complete treatment.

Well, in that same bizarro world, I guarantee that defendants will add up the confinment time and relax when it equals something close to a state jail sentence. And for a prison sentence, anything involving 10 years or less will virtually guarantee immediate parole.

This whole issue was publicly debated in the Punishment Standards Commission over a decade ago. The Legislature concluded that treatment is not punishment and, therefore, a defendant should not get credit for it. In addition, to encourage prosecutors and judges to use prison treatment beds (SAFPF), credit was denied.

[This message was edited by JB on 08-21-07 at .]

I respectfully disagree and think you are making a mistake in using this waiver. The legislature has spoken, just as they have spoken as to entitlement to jail credit for time spent awaiting trial. The judge is capable (with the help of the probation department) of calculating the proper amount of time spent in the drug or alcohol program for credit purposes, just as the judge does when the amount of restitution is disputed.

The program itself generally reports a successful or unsuccessful completion.

Additionally, there should be no "credit writs" since the legislation only applies to defendants placed on probation on or after September 1, 2007.

The Legislature speaks about all sorts of things. And defendants have the right to waive those things. That is an accepted part of plea negotiations.

Only a few years ago, the consensus was that denying credit to a defendant encourages a defendant to do well in treatment, so he avoids a revocation and pen time. How is it now the opposite? A defendant will do well in treatment, so he can get credit on his future revocation? If defendants thought that far ahead, they would avoid the crime itself.

In my opinion, the sentence is for the purpose of punishment. Treatment, even inpatient treatment, is not punishment. It might be hard, but it ain't punishment. So, it seems a bit nonsensical to shorten the sentence by subtracting time the defendant spent getting free treatment. Next session, we will no doubt add credit for community service hours, time spent in school, and hours watching television.

I once joked that the Legislature would award good conduct credit from time of the defendant's birth if they thought it would help them avoid building a prison. Perhaps that is not so far-fetched.

We negotiate the number of years a defendant spends in prison. What is the difference between negotiating the same sentence, absent credit for treatment, and negotiating a longer sentence with the credit? It's just math. And it avoids the endless late claims about time credits.

True, Ken, the new treatment credit law only applies to those defendants who are placed on probation on or after 9/1/07. But, I guarantee you that judges will award the credit without regard to that effective date. Defendants will claim the credit and file writs regardless of the effective date. And the system will just give in.

So, I have to respectfully disagree with your disagreement.

John, nothing burns me worse than fights over pre-sentencing credit. But, I also doubt we are truly at liberty to "negotiate the number of years a defendant spends in prison," especially after the starting number was already determined earlier. To me the disconnect in the idea comes in saying someone is going to be considered to have served a part of the sentence when in fact an order is in place "suspending" the imposition of sentence. (Obviously, deferred adjudication is a somewhat different story.) Still, I do not think either a prosecutor or judge can tinker with the law under the guise of a waiver. The defendant has a right to a sentence (with credit) as that term is defined by the legislature. The waiver of "rights" to which you refer are pre-trial and trial procedures, and not how the term of a sentence is calculated, if and when it is imposed. The "credit" writs will continue to flow. I hope you are right that the CCA will say the waiver works in connection with a revocation motion. But, given how they have dealt with credit issues in the past, I am not holding my breath.

I seriously doubt that most probationers receive the maximum punishment available upon revocation/adjudication. Most of them negotiate some sentence less than the sentence set at the earlier date (for a revocation) or less than the maximum for the range of punishment (for an adjudication). What is the difference between moving that number up or setting a lower number that includes waiver of the treatment credit to avoid administrative complications arising from guessing how many days a defendant spent at inpatient treatment.

If some of you have judges who are thrilled to personally handle credit issues, I'm impressed. It is my experience that credit issues are delegated to (1) probation, (2) prosecutors, (3) clerks or (4) just about anyone but the judge.

There is no objective way at the time of sentencing to pull up credit time for SAFPF (the prison would have that info), CSCD-based inpatient facility or a private inpatient facility. Unless you just want to take the defendant's word (which will change when he gets to prison and has more time to refresh his memory on actual days in treatment), this will be a significant administrative addition to the work of the aforementioned people.

Now, if a defendant gets the maximum sentence, then he certainly is entitled to credit for the inpatient treatment time, assuming the judge determines the treatment was "successful." We have seen that same issue when dealing with credit for time in county jail upon sentencing for a state jail. (And, by the way, we have been doing waivers on that sort of time since 1994 and haven't had problems. Indeed, the CCA has approved such waivers in denying many, many credit writs.)

Setting aside all this discussion, the treatment credit makes the least amount of sense for state jail felony offenses. Let's say the average sentence for a state jail offense is one year in state jail. Inpatient treatment at a SAFPF is generally about a year. Seems to me that we removing any incentive whatsoever for a state jail felon to behave on probation once he has finished his stay in treatment. After all, he will know he has already served his sentence. If he had time spent in county jail pending disposition of the case, maybe we owe him time.