Attorney General Opinion JM-0194

JIM MATTOX Attorney General Supreme Court Building P. 0. Box 12548 Aus!in. TX. 78711. 2548 5121475~2501 Telex 9101874-1367 Telecopier 5121475.0266 714 Jackson, Suite 700 Dallas, TX. 75202-4506 2141742-8944 4824 Alberta Ave., Suite 160 El Paso. TX. 79905.2793 915/533-3484 P 101 Texas. Suite 700 r,wston, TX. 77002-3111 713/223-5886 806 Broadway, Wife 312 Lubbock, TX. 79401-3479 8061747~5238 4309 N. Tenth. Suite 6 McAllen. TX. 78501-1685 5121682.4547 200 Main Plaza, Suite 400 San Antonio, TX. 782052797 5121225-4191 An Equal Opportunity/ Affirmative Action Employer P The Attormy General of Texas AuI;ust 20, 1984 Honorable Wilev 1,. h:heatham District Attorney P. 0. Box 587 Cuero, Texas 779 5'; Dear Mr. Cheatham: Opinion No. JM-194 Re: Duties of certain officials under article 42.12, Code of Criminal Procedure You have asked the following questions regarding the duties, responsibilities, md limitations of authority of the district attorney (or other state prosecutor), district judge, and probation officer under section 8(a) of article 42.12 of the Code of Criminal Procedure concerni,: the revocation of probation: 1. D~ZS the fact that a probation revocation hearing '7%~ been held to be administrative, rather than crj.minal in nature, change the duties and responsi>tlities of the district attorney, or other state prosecutor, in the revocation proceedil:s compared to the filing and trying of an ordinxcy criminal case? 2. C~, a district attorney file a petition in district court to revdke a felony probation which was granted in one of the counties served by the district attorney, without the request of the probation officer and/or the district judge, or is the district attorney prohibited fron filing a petition to revoke a felony probation unless requested to do so by the probation officer and/or the distrtct judge? 3. If the probation officer obtains the written s?proval or order of the district judge to file a motion to revoke the probation of a felony probationar, is the district attorney required to file a motion to revoke regardless of the lack of merits or lack of admissible legal evidence available to revoke, or does the district attorney have the authority to screen the requests to file motions t3 revoke probations and to refuse to file a motion to revoke when he feels that there is a lack of sufficient, legal, admissible evidence p. 847 Honorable Wiley L. Cheatham - Page 2 (JM-194) submitted to him by the probation officer on which to prove the allt!f;ed violations, as required by the appellate courts? 4. If the dt.strict judge goes over the evidence and facts of the case in detail with the probation officer prior to ordering that a petition to revoke be filed and not in open court with attorneys for both sides present, is the judge then disqxlified to hear the revocation proceedings? 5. After a petition to revoke a probation has been filed, can a judge refuse or decline to hear the petition to revoke? 6. After a petition to revoke a probation has been filed, can a judge dismiss the petition to revoke without a hEsring, when the state is ready for the hearing xd requests that a hearing be conducted? 7. (A) After 3 petition to revoke a probation has been filed by the prosecutor, can the judge transfer the hearing to another district for another prosecutor' to handle, without a hearing and without the :Ipproval of the prosecutor who filed the motion w revoke and without showing good cause? (B) Can a judge not only transfer a petition to revok{! as above set forth, but also combine the petitirl to revoke with other cases in other districts. al.1 consider all cases together without the consent of the state prosecutor? 8. (A) If a judge calls a probationer into court and informalL:r discusses alleged violations, without a hearing and not in the presence of the prosecutor and/or Jefense counsel, is the judge disqualified to he.1.r a petition to revoke filed by the state concernl.rg violations discussed by the judge and probe,tioner? (B) If the judge discusses the .i,lleged violation with the probationer, can the judge then refuse to hear a petition to revcke filed by the prosecutor covering the viola.::lons discussed? The subject statute reads in part as follows: Sec. 8. (a) At any time during the period of probation the co11::t my issue a warrant for violation of any of the conditions of the p. 848 Honorable Wiley L. Cheatham -’ Page 3 (JM-19 4) probation and cau;,: the defendant to be arrested. Any probation officer, police officer or other officer with poser of arrest may arrest such defendant without ~1 warrant upon the order of the judge of such court to be noted on the docket of the court. A probationer so arrested may be detained in the cclunty jail. or other appropriate place of detenticr until he can be taken before the court. Such officer shall forthwith report such arrest and c.rtention to such court. If the defendant has not heen released on bail, on motion by the defendant the court shall cause the defendant to be ‘>cought before it for a hearing within 20 days of :iiling of said motion, and after a hearing without a jury, may either continue, modify, or revokt! the probation. The state may amend the motion to revoke probation any time up to seven days beFore the date of the revocation hearing, after wh:.ch time the motion may not be amended except ftr.r good cause shown, and ins no event may the state amend the motion after the commencement of r;lking evidence at the hearing. The court may car tinue the hearing for good cause shown by either t’le defendant or the state. If probation is revoked, the court may proceed to dispose of the case as if there had been no probation, or iji it determines that the best interests of society and the probationer would be served by a shor:jzr term of imprisonment, reduce the term of impx,isonment originally assessed to any term of imprisxnaent not less than the minimum prescribed for the offense of which the probationer was convicted. Code Grim. Proc. art. 42.1:!, This provision of the Adult Probation, Parole, and Mandatory Supervision Law provides little guidance in arriving at answers to your questions. We conclude, however, that the functions of the district .lttorney and district judge in probation revocation matters are generally comparable to their respective roles in other similar facets of criminal proceedings. In its most recent ‘zcposition of the nature of a probation revocation proceeding in RJadas v. State, 586 S.W.2d 520, 523 (Tex. --- 1979), the Texas Court of Criminal Appeals stated as follows: In Davenport v’. State, 574 S.W.Zd 73 (Tex. Cr. App. 1978), we heid: ‘At a revoc:z.tion of probation proceeding, a defendant neei not be afforded the full range of constitutional and statutory protections p. 849 Honorable wiley L. cheatham '- Page 4 (JM-194) available at a criminal trial. Gagnon v. Scarpelli, 411 lJ.S. 778, 93 S.Ct. 1756, 36 L.Ed.Zd 656 (1973). At such a proceeding, guilt or inno~xnce is not at issue, and the trial court is not concerned with determining the defendant's original criminal culpability. "The question at a revocation hearing is whether the a?:xllant broke the contract he made with the court after the determination of his guilt." Kf:.'~ly v. State, Tex. Cr. App., 483 S.W.2d 467, 4%g. Also of significance is the fact that ". . . the result of such a hearing to revoke is n3t a conviction but a finding upon which the trial court might exercise its discretion by revoking or continuing probation." H:.:.l V. State, Tex. Cr. App., 480 S.W.2d 200. GGrt. denied, 409 U.S. 1078, 93 S.Ct. 694, 34?,Ed.2d 667 (emphasis added). "A probation revccation hearing is not . . . a criminal prose,:ution." Hill v. State, supra. It has been dcgrominated as "administrative in nature." Hill F. State, supra.' --- This is not to say, however, that all constitutional guarantees of due process fly out the window at a probation revocation hearing. A probationer is entitled to certain due process protections in the revocation proceedings. Eradley v. State, 564 S.W.2d 727 (Tex. Cr. App. 1978); Whisenant Y. State, 557 S.W.2d 102 (Tex. Cr. App. 1977). ?n Gagnon v. Scarpelli, a, the Supreme Colrt enunciated the 'minimum requirements of glue process' which must be observed in probation revocation hearings. They include: written notice of the claimed violations of probation, disclosure to the probationer of the evidence against l~im, the opportunity to be heard in Person and to present witnesses, the right to confront and cross-examine adverse witnesses, a 'neutral and detached' hearing body, and a written statement bv the E,uzt finders as to the evidence relied on and the ::easons for revoking probation. See also Morrissey V. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Wbisenant v. State, supra, we observed that -- the procedure for revoking probation in this State affords a probaticrer far greater safeguards than those required by _(:agnon Y. Scarpelli, D, and Morrissey V. Bre*er, stated in Whisenant that -7 supra. We The proceeding to revoke p. 850 Honorable Wiley L. Cheatham - Page 5 (JM-194) probation, although not the same as a criminal trial, requires substantially all the same procedure . . . . An adversary proceeding is afforded the probationer in which almost all of the rules of evii,cnce and criminal procedure are applicable . . . .' 557 S.W.2d at 105. Compare Fariss v. Tipps, 463 S.W.2d 176, 179 (Tex. 1971). Hill v. State, a, held that a probation revocation hearing is not "an adversarial proceeding, a ~::Lvil action, or a criminal. prosecution." 480 S.W.2d at 202. Recent cases such as Ruedas and Whisenant, supra, establish that --- a probation revocation heartzIg &x adversarial in nature. Moreover, a careful reading of the cou.:,:'s pronouncement in Ruedas leads to the conclusi~on that earlier stx:ements regarding a probation revocation hearing being an administ~~c.tive proceeding rather than a criminal prosecution have been largely eroded. These statements are merely another way of saying that such a hearing is not a part of the determination of a defendant's original criminal culpability and consequently does not entit:.#! a defendant to the full range of federal due process protection required for criminal defendants prior to a determination of guilt. LL:ce"ise, the Ruedas exposition also notes that while Morrissey, =I&, and Scarpelli, s, mandate only specified "minimum requirena~nts of due process," Texas law requires that far greater safeguxds, amounting to virtually the same procedural protections avai:lzlble at a criminal trial, be afforded in a probation revocation hearin:. See, e.g., Ex parte Guzman, 551 S.W.2d 387 (Tex. Grim. App. 1977) (a probationer has the right to be represented by counsel at a Jxobation revocation hearing). Regarding your first th::ee questions, we refer to article 2.01 of the Code of Criminal Procedxe, which requires that: Each district attcrney shall represent the State in all criminal usea in the district courts of his district and :.n appeals therefrom, except in cases where he YLIS been, before his election, employed adversel:r . . . . It shall be the primary duty of all pro:rlxuting attorneys . . . not to convict, but to sszt% that justice is done. See also Tex. Const. art. V, §21. While section 8(a) of article 42.12 does not explicitly speak. to the filing of a motion to revoke probation, it does refer tcs "[tlhe state" amending such a motion and case law applying article 2.01 implicitly recognizes that the appropriate agent of the st,s:e for filing probation revocation motions is the district attorney (or other state prosecutor). See uparte Morgan, 616 S.W.2d 625 (Tex. Crim. App. 1981) and Ex pa&-Spain,589 S.W.2d 132 (Tex. Grim. App. 1979). Indeed, in Taylor V. State, No. 12-83-0126-CR, Tex. App. - Tyler, March 29, 1984 (unreported), the p. 851 Honorable Wiley L. Cheatham .. Page 6 (JM-194) .- Tyler court of appeals reczently explicitly held that a revocation proceeding falls within the smbit of both article 2.01, V.T.C.S., and article V, section 21 of the Texas Constitution, thus requiring the state's interests to be represented by the appropriate state prosecutor. Thus, we answer your first three questions as follows: (1) the duties and responsibilities of the state prosecutor in probation revocation proceedings are comparable to those of such prosecutor in the main criminal prosecutjcn; (2) when in his prosecutory judgment the circumstances are appropriate, a district attorney may file a motion to revoke a felonlr probation without the request of the probation officer or district judge; and (3) a district attorney is not required to file a motic#r to revoke sought by a probation officer, if there is a lack of merit or the existence of any legal defect, but rather a district attorney cihould exercise appropriate prosecutorial discretion as in an original criminal prosecution. Indeed, article 2.01 as auoted above directs the orosecutor to do iustice above all. Compare Model Code of Pxsfessibnal Responsibility, Canon 7 and especially DR 7-103(A). Regarding questions four and eight, the circumstances posited would not be the basis for i: disqualification, because the exclusive grounds for disqualifying a judge from sitting in a criminal case are very narrowly drawn in article V. section 11 of the Texas Constitution and article 30.01 of the Code of Criminal Procedure. Ex parte Largent. 162 S.W.2d 419 (Tex. Grim. App. 1942). cert. denied, 317 U.S. 668 (1942). Until very recently, it was well established zhat the bias or prejudice of a trial judge not based upon interest Is not a legal disqualification. Aldridge V. State, 170 Tex. Cr. R. 502, 342 S.W.2diO4 (1961); Vera V. State, 547 S.W.2d 283 (Tex. ,:r. App. 1977). However, any indication of prejudice or opinion of guilt on the Dart of the trial iudee reauires close scrutiny of his rulings on ap&al-. Aidridge V. State, &; Vera V. State, supra. But the judge's bias, if any, standing alone, does not constitute error. Of- course, a defendant co"lc? challenge an erroneous ruling r.xther than the prejudice which would nive the dr,fendant the rizbt to complain. Boldin; V. State, 493 S.W.2d 18: (Tex. Cr: App. 1973); Vera v. State. supra. Zima V. State, 553 S.W.Zd 378, 380 (Tex. Grim. App. 1977). In McClenon v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983), however, the Court of Criminal Appeals held that bias which "is shown to be of such a nature and to s"& an extz:~t as to deny a defendant due process of law" would be a basis for disqualification. Moreover, Morrissey, SUE, at 489, and Scarpel.11. B, at 786, make clear that "a -- p. 852 Honorable Wiley I.. Cheatham - Page 7 (JM-194) 'neutral and detached' he;lr,ing body" is necessary to satisfy the minimum requirements of due process. Thus, we believe that a judge who either "goes over the facts . . . and evidence . . with the probation officer prior to ordering that a petition to revoke be filed . . ." beyond what IS necessary as a basis for losuing a warrant, or "informally discusses alleged violations with pr,‘)ationer . . . [outside] the presence of the prosecutor and/or defer.$e counsel . . ." could put his status as "neutral and detached" in jeopardy. A recent, very cogent analysis of the constitutional impropriety of an official functioning as both prosecutor and judge in the same case emphasizes the necessity of "the appearance of impartiality constitutionally required by a judge." Giles V. City of Prattvills:, 556 F.Supp. 612 (M.D. Ala. 1983). See also Chitimacha Tribe of I>,uisiana V. Harry I.. Laws Co., 690 F.2d 1157, 1165 (5th Cir. 1982): The Giles court went on to quote the United States Supreme Court in Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) as follows: The Due Process Clause entitles a person to an impartial and dislxterested tribunal in both civil and criminal :.tses . . . . The neutrality requirement helps TO guarantee that life, liberty, or property will r.ot be taken on the basis of an erroneous or distorted conception of the facts or the law . . . . ,Lt the same time, it preserves both the appearance and reality of fairness 'generating the feeling, so important to a popular government, that justice has been done . . . ' by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him. Cf. Cooledge V. New Hampshi.re, 403 U.S. 450 (1971). In Texas ex rel. Bryan v. McDonald, 662 S.'z3d 5 (Tex. Grim. App. 1983), the court found it improper for a crtdge to view a presentencin report of a probation officer prior to a determination of guilt or innocence because of Canon 3(A)(4) oi' the Code of Judicial Conduct regarding 5 parte communications conce:ming pending or impending proceedings. Consequently, we conclude that, depending on the facts of the particular case, a judge whc~ combined the prosecutorial function with his decision-making funct,ion, as might occur in the situation described in your questions four and eight, could violate the constitutional mandate for a fair and impartial hearing tribunal. See - Weng Yang Sung V. McGrath, 339 U.S. 33, 50 (1950). Questions five and six raise the issue of what sort of discretion a judge has to dispose of a probation revocation petition without a hearing. Section 1 of article 42.12 pT@VidSS in part that p. 853 Ikmorable Wley L. Cheatham -. Page 8 (JM-194) It is the purpose ,f this Article to place wholly within the state COUrtP of appropriate jurisdiction the -cespo"sibil~ity for determini"g when the impositi,& of se"teuce in certain cases shall be suspended, the conditions of probatlnn, and the supervisicr of probationers, in consonance with the powers ae;igned to the judicial branch of this government 3'? the Constitution of Texas. (Emphasis added). Since there is no provisic~r, to the contrary, and since the whole thrust of this statute is to place the gover"a"ce of the probation system within the discretior~ of the judges of criminal courts, we are satisfied that, absent an alsme of discretion, a district court judge may dismiss a petition to revoke probation without a hearing, although he could not, of course, at::: to revoke without a state prosecutor's having filed a motion seeking such action. compare article 32.01 of the Code of Criminal Procedure. Question seven implicates section five of articles 42.12 which reads as follows in pertinent part: (a) Only the c:curt in which the defendant was tried may . . . alter conditions, revoke the probation, or disc:karge the defendant, unless the court has transferI,ed jurisdiction of the case to another court with-the latter's consent . . . . (h) After a defendant has been placed on probation, jurisc2ction of the case may be transferred to a court of the sane rank in this State having geog;aphical jurisdiction where the -~- defendaut is resii,fng or where a violation of the conditions of prcbation occurs. Upon transfer, the clerk of the court of original jurisdiction shall forward a transcript of such portions of the record as the transferring judge shall direct to the court accept:lug jurisdiction, which latter court shall thereafter proceed as if the trial and conviction had occurred in that court. (c) Any court having geographical jurisdiction where the defendant is residing or where a violation of the c,onditfons of probation occurs may issue a warl:i"t for his arrest, but the determination of action to be taken after arrz shall be only by t& court having jurisdiction of the case at the tiiz the action is taken. These provisions, rather th,rl the venue provisions in chapter 31 of the Code of Criminal P.rocedure, control probation revocation p. 854 Honorable Wiley I.. Cheatham _' Page 9 (JM-194) proceedings, since the specific prevails over the general. See 53 Tex. Jur.2d Statutes, 1186. Section 5(a) and (b) unequivocallyxate that after a defendant has been placed on probation the court which tried him may transfer his Ease to a coequal court which is located either (1) where the probationer resides, or (2) where the alleged violation of the conditionE of probation occurred, if the transferee court consents. Subsection (c) states that either court may issue a warrant for a probatione.c's arrest, but only the court having jurisdiction of the case al, the time may act on the motion to revoke probation. Section 5 contains no other restraints on the transfer of cases wherein a defendant has been granted probation. Hence, we believe that a judge has ehe authority to transfer such a case to another district court wil:llout the approval of the prosecutor who filed the motion to revoke. After such transfer, we believe the transferee court would be able to join other cases with the probation revocation matter without 1:l.e consent of the prosecuting attorney in the transferee district, ttough such procedure is not recommended. Moreno v. State, 587 S.W.2d ,105, 412-413 (Tex. Grim. App. 1979). SUMMARY The responsibilities of a district attorney in a probation revocstion hearing are essentially the same as those in a trial to determine criminal culpability. Fox, example, a district attorney's determination of whether to file a petit,ion to revoke probation nust be based on his own best prosecutory judgrlc!nt, not merely the request of the probation officer. If a district judge reviews the facts involved in an alleged prol~ation violation matter with the probation officex, or the probationer outside the presence of the district attorney, the judge, though he is not: otherwise disqualified under state law, might under particular circumstances find it appropri;,te to decline to hear the matter at issue if he has compromised the impartiality demanded by the federal due process clause. Since the who:lc thrust of article 42.12 is to give governance cf the probation system to the district judge, te may decline to hear or may dismiss a probat!.on revocation petition without a hearing. Under sectior. five of article 42.12, the district jGdge is authorized to transfer the hearing on a probation revocation motfon with the consent of the transferee judge, and the p. 855 . . Honorable Wiley L. Cheatham . Page 10 (JM-195) transferee judge msy consolidate such transferred matter with other cases. MA TT 0 X Attorney General of Texas TOM GREEN First Assistant Attorney Gerwral DAVID R. KICHARDS Excutive Assistant Attorne], General Prepared by Colin Cari Assistant Attorney General APPROVED: OPINION COMMITTEE Rick Gilpin, Chairmen Jo" Bible Gary Bledsoe David Brooks COli" Carl Susan Garrison Jim Ploellinger Nancy Sutton p. 856