Posted on August 21, 2008 by Jamie Spencer

Whose Decision Is It?

Someone googled:

“Whose decision is it to put someone in jail if you fail a drug test while on probation?”

Well, if you fail a U/A while on probation, your probation officer will file a motion to revoke which causes paperwork asking that a warrant issues to be sent to the court for the judge’s signature.

On some minor violations the court will actually issue a summons instead of a warrant (at least in Austin) but most judges around here will authorize the warrant for a positive specimen.

So initially the ‘decision’ is the PO’s and the judge’s, if you’re talking about the decision to issue a warrant. If and when you bond out of jail, however you still face revocation proceedings in court.

I think this is what the question is really asking about, and the answer is: the judge.

In Texas – and I’d bet in almost every place as well – you are not entitled to a jury trial to decide whether or not you are in violation of probation. And worse still, the state need not prove the violation beyond a reasonable doubt, but only “by a preponderance” which means more likely than not.

So, try not to fail any U/As on probation, and there’s really only one good way to make sure of that, if you catch my drift…

 

Tags: , ,
Posted on December 12, 2006 by Jamie Spencer

Travis County Probationers Face Lengthy Wait For Treatment

Steven Kreytak writes an excellent piece in today’s Statesman highlighting a major flaw in the Travis County probation system. I’m sure there are similar issues all over the state, but I am personally familiar with the situation based on representing defendants arrested for possession of controlled substances in Austin. From Kreytak’s article:

Statistics show that hundreds of newly sentenced probationers in Travis County are waiting to get into court-ordered substance abuse treatment.

Judges send some offenders to county jails to wait for a treatment slot to open up, exacerbating the county's ongoing jail crowding problem. Others are released into the community to fight their addiction on their own.

The wait for treatment is usually several months, department officials said.

The waiting lists in Travis County are among the longest in the state and could hinder the probation department's ambitious overhaul of its practices.

Naturally, when a defendant is sentenced to probation for a drug offense, “treatment and counseling as recommended” is a condition of their supervision. This is so common in Austin that prosecutors simply write the acronym “TCAR” on their files as a part of their plea bargain recommendations. 

However, for felony charges, this often means that the defendant must “wait in jail until a bed opens up” in whatever treatment facility is “recommended”. The practical effect of this is to add long periods of incarceration to a defendant’s sentence, because not enough counseling options are available.

It’s a problem that only adequate funding can address, because, as the article points out, offenders released from jail immediately into community supervision (probation) often do not have their treatment needs met immediately, and re-offend prior to receiving counseling. This leads to an immediate filing of a Motion to Revoke Probation, with the defendant back in court.

The defense lawyer is then left to argue to the judge that the original sentence of prison should not be imposed, because the client is still in need of treatment. Of course, at this point, the judge is even more likely to leave the defendant in jail waiting treatment, which compounds our local jail overcrowding problems.

Tags: , ,