The Attormy General of Texas
JIM MATTOX AuI;ust20, 1984
Attorney General
Supreme Court Building Honorable Wilev 1,.h:heatham Opinion No. JM-194
P. 0. Box 12548 District Attorney
Aus!in. TX. 78711. 2548 P. 0. Box 587 Re: Duties of certain officials
5121475~2501 Cuero, Texas 779 5'; under article 42.12, Code of
Telex 9101874-1367
Telecopier 5121475.0266
Criminal Procedure
Dear Mr. Cheatham:
714 Jackson, Suite 700
Dallas, TX. 75202-4506
You have asked the following questions regarding the duties,
2141742-8944
responsibilities, md limitations of authority of the district
attorney (or other state prosecutor), district judge, and probation
4824 Alberta Ave., Suite
160 officer under section 8(a) of article 42.12 of the Code of Criminal
El Paso. TX. 79905.2793 Procedure concerni,: the revocation of probation:
915/533-3484
1. D~ZS the fact that a probation revocation
P
101 Texas. Suite 700
hearing '7%~been held to be administrative, rather
r,wston, TX. 77002-3111 than crj.minal in nature, change the duties and
713/223-5886 responsi>tlities of the district attorney, or
other state prosecutor, in the revocation
proceedil:s compared to the filing and trying of
806 Broadway, Wife 312
Lubbock, TX. 79401-3479
an ordinxcy criminal case?
8061747~5238
2. C~, a district attorney file a petition in
district court to revdke a felony probation which
4309 N. Tenth. Suite 6
was granted in one of the counties served by the
McAllen. TX. 78501-1685
5121682.4547
district attorney, without the request of the
probation officer and/or the district judge, or is
the district attorney prohibited fron filing a
200 Main Plaza, Suite 400 petition to revoke a felony probation unless
San Antonio, TX. 782052797
requested to do so by the probation officer and/or
5121225-4191
the distrtct judge?
An Equal Opportunity/ 3. If the probation officer obtains the
Affirmative Action Employer 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
P 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:rdiscusses 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.rgviolations 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::tmy issue a warrant for
violation of any of the conditions of the
p. 848
Honorable Wiley L. Cheatham -’Page 3 (JM-194)
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 ~1warrant 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 ccluntyjail. or other appropriate
place of detenticr until he can be taken before
the court. Such officer shall forthwith report
such arrest and c.rtentionto 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 :iilingof 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.rgood cause shown, and ins no
event may the state amend the motion after the
commencement of r;lkingevidence at the hearing.
The court may cartinue the hearing for good cause
shown by either t’ledefendant 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,isonmentoriginally 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:.:.lV. 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 dcgrominatedas "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,uztfinders as to the evidence
relied on and the ::easonsfor 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 _(:agnonY. Scarpelli, D, and
Morrissey V. Bre*er, supra. We stated in
Whisenant that -7The 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,cnceand 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.:,:'spronouncement 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~ntsof 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::eequestions, 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:efor 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#rto 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 cihouldexercise 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.xtherthan 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:~tas 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,ingbody" 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.$ecounsel . . ." 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.otbe 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~ityfor 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:curtin which the defendant was
tried may . . . alter conditions, revoke the
probation, or disc:kargethe defendant, unless the
court has transferI,edjurisdiction 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,fngor 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:lloutthe 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.econsent 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~ationviolation 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;,teto 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!.onrevocation 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