The biggest obvious change would be to shorten the maximum length of probation for 3rd degree felony drug offenses from ten years to five. [See also Scott Henson’s continuing and excellent coverage on the subject of why shortening probation terms in Texas would be a good thing: start here and here.]
But there are other important changes tucked in there too, that need to be implemented. For example, it would require Texas judges to give credit to revoked probationers for the time they spent successfully completing SAFPF (the underlined portions are the proposed changes; they have not taken effect):
SECTION 1. Section 2(a), Article 42.03, Code of Criminal Procedure, is amended to read as follows:
(a) In all criminal cases the judge of the court in which the defendant is [was] convicted shall give the defendant credit on the defendant's [his] sentence for the time that the defendant has spent…
(2) in a substance abuse treatment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, as a condition of deferred adjudication community supervision granted in the case if the defendant successfully completes the treatment program at that facility.
Government Code 493.009 refers to SAFPF (pronounced by judges, prosecutors, defense lawyers and defendants alike as “SAFE-P”), which is a six to nine month therapeutic community program served in TDCJ (prison) followed by three months at a residential facility, and more outpatient treatment after that.
Basically, it can mean being locked up for a year.
Now here’s where it gets interesting. Defendants in Texas who are offered probation on a 3rd degree Possession of Controlled Substance charge might now be offered up to 10 years of probation with SAFPF as a condition of probation. Or they might get an alternate recommendation of 3 or 4 years in prison, if they chose to turn down probation. Anywhere between 2 to 10 "to do"(as we say).
Since under current Texas law, the defendant will not get credit for the year he spent completing the SAFPF program, if he is later revoked on probation, he may decide “just to take the prison time” instead. For someone who was offered the minimum of two years TDC, factoring in the possibility of parole, it might actually mean the defendant spends less time locked up by turning down probation.
That’s right: there are currently many scenarios where defendants turn down probation if SAFPF is a condition, because they calculate that they may parole more quickly if they take a “low” prison sentence instead.
I’m sure most practicing criminal defense attorneys in Austin have had these discussions with their clients.
From a public policy standpoint, it’s idiotic. We ought to be encouraging drug offenders to seek treatment; not giving them common sense reasons why they ought to use tax payer money to be incarcerated. And not crediting them with the time they've done towards potential future revocations is both unfair to them, and overly burdensome on the taxpayer.