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									           Texas Community Supervision Officer Certification Pre-Coursework




                                  Module 4:
            Adult Community Supervision Law


I. Introduction: The Code of Criminal Procedure governs all criminal
proceedings in the State of Texas. Community Supervision, in particular, is
covered in article 42.12 of the Code of Criminal Procedure. Throughout this
module, references will be made to this article. It is recommended that you have
a copy of article 42.12 handy as you read this material.


This module will review the types and characteristics of community supervision in
Texas, the criminal process, and actions required of you when an offender
appeals his sentence or revocation. More specifically, our performance
objectives are:



1. Identify the four types of community supervision in Texas.
2. Identify the steps in the sequence of the criminal process.
3. List the differences between regular community supervision and deferred
       adjudication community supervision.
4. Identify eight characteristics of ―shock‖ community supervision.
5. Identify seven characteristics of state jail felony community supervision.
6. Identify the correct actions when there is an appeal of an order placing a
   person on community supervision or revoking community supervision.
7. Identify six characteristics of Pre-Trial Intervention.




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II. Content: We will begin by looking at the types of community supervision in
Texas.


A. THE FOUR TYPES OF COMMUNITY SUPERVISION IN TEXAS


1. First is felony and misdemeanor community supervision, found in the Texas
Code of Criminal Procedure. TCCP, Art. 42.12, Sec.3.

2. Deferred Adjudication felony and misdemeanor community supervision are
found in TCCP Art. 42.12, Sec. 5.

3. A third type is shock community supervision for felony and misdemeanor
offenses. The citation for this type of community supervision is found in TCCP,
Art. 42.12, Secs. 6, 7. Felony "boot camp" is a form of shock community
supervision. TCCP, Art. 42.12, Section 8.

4. The fourth type of community supervision is for State Jail Felonies, found in
TCCP art. 42.12, Sec. 15. A state jail felony is a separate felony category which
exposes an individual convicted of this type offense to the possibility of
incarceration in a state jail facility.

Before detailing the characteristics of various types of community supervision,
let’s look first at the process of how a person gets placed on community
supervision.


B. THE STEPS IN THE SEQUENCE OF THE CRIMINAL PROCESS

There are seven steps in the sequence of the criminal process. They are:



         Step 1: Charge
         Step 2: Plea
         Step 3: Evidence
         Step 4: Finding
         Step 5: Assessment of Punishment
         Step 6: Imposition (or Suspension of Imposition) of Punishment
         Step 7: Execution of Punishment

Let's look at each of these steps in more detail.


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Step 1: CHARGE

To understand how one is charged with a crime, let’s take a brief look at some
legal terminology used.

The prosecution of a criminal action begins with the State filing the charging
instrument: the complaint, information, or indictment. The type of documents
filed and the court it is filed in will depend on the severity of the offense charged
(misdemeanor or felony) and will frame the issues for the trial. The jurisdiction of
a court is defined by statute, but in general: district courts have jurisdiction of
felonies and certain misdemeanors; county courts have jurisdiction over Class A
and B misdemeanors, and JP and municipal courts have jurisdiction over Class
C misdemeanors.

a. Complaint

A complaint is the initial charging instrument in all cases. It is a sworn written
statement made by a credible person that is presented to a magistrate or the
district or county attorney alleging that the accused has committed an offense in
their jurisdiction. TCCP arts. 2.04, 15.04. The requirements of the complaint are
set out in TCCP art. 15.05. Sometimes the complaint is filed when the defendant
is caught in the act of committing a crime, however, it may be filed after the
offense has been committed. For Class A and B misdemeanor offenses, it
usually is filed with the information in a county court, and for felony offenses it is
filed with a magistrate in the county. TCCP art. 2.05.

b. Information

The information is a written statement, based on and filed with the complaint,
charging a person with the commission of a crime. TCCP art. 2.05. For Class A
and B misdemeanors, it is filed by the State’s attorney in a county or district court
and it vests that court with the jurisdiction of the case. TCCP arts. 21.20, 21.22.

c. Indictment

The indictment is a written instrument from a grand jury charging a person with
the commission of an offense. TCCP art. 21.01. In felony cases, the defendant
has a constitutional right, unless waived, to be charged by a grand jury
indictment. TEX. C ONST . art. I, §10. If this right is effectively waived, the
defendant may be prosecuted for a felony by means of an information. TCCP
art. 1.141.




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Grand juries are composed of at least twelve persons and function as units of the
district courts. TEX. CONST. art. V, § 13. TCCP art. 19.26. If the grand jury does
not conclude its business within its term, the district judge who impaneled them
may extend their term for up to 90 days. TCCP art. 19. 07. The prosecutor has
the statutory right to address the grand jury, but the accused and the defense
attorney may participate only if permitted by the grand jury. TCCP arts. 20.03,
20.04. Its proceedings, which are secret, operate in several stages: take
evidence, deliberate, and vote on whether to indict the accused. TCCP art.
20.02. If at least nine members believe there is sufficient evidence to proceed
with a criminal trial, then an indictment or "true bill" is returned, signed by the
foreman and presented to the district judge. TCCP art. 20.19. If not, then a "no-
bill" is returned and the case is either dismissed or the investigation continues for
more evidence. The return of an indictment does not signify guilt. It just means
that at least nine citizens of the county have found that there is probable cause to
believe that a crime has been committed.

However, for our purposes, just know that a complaint is made by a credible
person alleging that a crime has been committed. In most cases, the information
is the charging instrument for a misdemeanor offense and the indictment is the
charging instrument for a felony offense.

Example: You discover that your DVD, TV, and microwave have been stolen.
You call the police, and after completing the investigation, the case is turned over
to the appropriate prosecuting attorney for review and criminal prosecution. The
value of the items stolen (brand new 65‖ flat-panel plasma HDTV vs. 15‖
standard-definition digital TV) will determine whether the county or district
attorney prosecutes your case. A complaint is filed charging that the defendant
has committed an offense.

For a class A or B misdemeanor (the 15‖ standard-definition digital TV), the
county attorney initiates the prosecution by presenting an information, based
upon and filed with the complaint, to the county court. For a felony offense
(brand new 65‖ flat-panel plasma HDTV), an indictment is returned from the
grand jury accusing the defendant of committing a criminal offense and is
presented to the district court.

Now that the accused has been charged with an offense, we consider the
possible punishments if he is found guilty.

Ranges of Punishment for Criminal Offenses

A. Misdemeanors

1. Jailable Misdemeanors, Class A and Class B Misdemeanors. TEX. PENAL
CODE §§ 12.21 and 12.22.




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      Class A misdemeanor – up to one year in a county jail and/or a fine not to
       exceed $4,000. TEX. PENAL CODE § 12.21 (Example: Official Oppression,)

      Class B misdemeanor – up to 180 days in a county jail and/or a fine not to
       exceed $2,000 TEX. PENAL CODE § 12.22 (Example: False Report to a
       Police Officer)

2. Fineable Misdemeanors, Class C Misdemeanors.

      Class C misdemeanor – up to $500 TEX. PENAL C ODE § 12.23.(Example:
       Criminal Mischief)

B. Felonies

Capital Murder – life or death. TEX. PENAL C ODE § 12.31.

1st degree felony – 5 to 99 years or life and possibly a fine not to exceed
$10,000 TEX. PENAL C ODE § 12.32. (example: Aggravated Sexual Assault.)

       What is the difference between Life and 99 years? If you get a life
       sentence, you can never serve it out. You will be incarcerated or on
       supervision for the rest of your life. Parole and mandatory supervision
       eligibility are determined based upon the law that was in effect at the time
       the offense was committed. Therefore, it varies depending on the year the
       offense was committed.

2nd degree felony – 2 to 20 and possibly a fine not to exceed $10,000 (example:
Aggravated Assault) TEX. PENAL C ODE § 12.33.

3rd degree felony – 2 to 10 and possibly a fine not to exceed $10,000. TEX.
PENAL C ODE § 12.34. (Example: Theft, if the Value of the Property is $20,000 or
more but less than $100,000)

State jail felony – 180 days to 2 years in a state jail facility and possibly a fine not
to exceed $10,000. TEX. PENAL C ODE § 12.35. (Example: Unauthorized Use of
Motor Vehicle)

The degree of some offenses varies depending on the circumstances. For
instance, a DWI with a child passenger is a state jail felony even if it’s the
accused’s first DWI offense. While examples have been provided, you can refer
to the Texas Penal Code if you want additional examples.

C. Enhancement of Punishment, Texas Penal Code, Section 12.42

Enhancement of punishment refers to increasing the range of punishment for the
primary offense as a result of proof that the defendant has a previous ―final‖


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conviction. A final conviction means there are no pending appeals and the
sentence was imposed, rather than suspended. Under § 12.42 deferred
adjudication and regular community supervision are not considered ―final‖
convictions for enhancement purposes, unless there was an adjudication of guilt
or the defendant’s community supervision was revoked, or if the defendant was
previously charged for certain sexual offenses. Additionally, other state laws
may define community supervision as a conviction. TEX. PENAL C ODE §§ 22.01,
30.01.

If the person has prior felony convictions, that were ―final‖ before the date of the
new offense, the punishment may be enhanced as follows:

Current Offense   Enhanced           by Required                Statute
                  prior convictions Enhanced
                                        Penalty
State jail felony Two prior state jail 3rd degree felony        § 12.42(a)(1)
                  felonies
State jail felony Two prior felonies 2nd degree felony          § 12.42(a)(2)
                  in sequence
3rd degree felony Any prior felony      2nd degree felony       § 12.42(a)(3)
2nd degree felony Any prior felony 1st degree felony            § 12.42(b)
                  except state jail.
1st degree felony Any prior felony 15-99 years or life,         § 12.42(c)(1)
                  except state jail.    plus 0-10,000 fine.
1st, 2nd, or 3rd Two prior felonies 25-99 years or life,        § 12.42(d)
degree felony     in       sequence
                  (except state jail)

See § 12.42, Texas Penal Code, for enhancements regarding special
circumstances and certain sex offenses.


STEP 2: PLEA

Step two in the criminal justice process is the PLEA. There are three different
types of pleas an accused can enter.

A. Types Of Pleas By Offenders

The first possible plea is "guilty." When the accused enters a plea of guilty, it is
an admission of guilt and the accused's consent to be convicted without a trial.
This plea is admissible in civil proceedings. TCCP arts. 26.13 and 27.02 (3).

The second type of plea is "no contest" (nolo contendere, nolo). Such a plea is
not an admission of guilt, but the accused does not contest the State’s evidence.
This plea is not admissible in civil proceedings. TCCP art. 27.02 (5).


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The final type of plea that can be entered is "not guilty". This is not a plea of
"innocent." Such a plea requires the State to prove guilt beyond a reasonable
doubt in order to convict. During the CSO Certification week, the trainers will talk
about the difference between preponderance of evidence and proof beyond a
reasonable doubt. TCCP arts. 26.12 and 27.02 (4).

B. Plea Bargaining

Why do we have plea bargaining?         Think of plea bargaining as a miniature
economic model.

The economy of time. In the usual case, a jury trial takes at a minimum two
days; a trial before the judge, at least half a day, and; a plea bargain takes at the
most twenty minutes. Ask your county or district clerk how many people were
either incarcerated or placed on community supervision this past year. Then
assume every case was a two-day jury trial, or a half-day trial before the court.
Especially in urban areas of the state you can see how backlogged the court
systems could become.

The economy of money. Jury trials involve the expense of the Clerk's time and
resources to send out jury notices, shuffle jury panels when requested, and
attend court during the trial. Bailiffs are needed to supervise the jury panel.
Refreshments are needed for the jurors, and they must be constantly observed to
insure the integrity and impartiality of the jury. Now that the Legislature has
substantially raised the per diem pay for jury service, that has become a
consideration.

What is the primary benefit of plea bargaining?

Plea bargaining saves the victim the trauma of testifying. It further allows a
resolution of a criminal accusation through negotiation, not litigation. If we did
not have plea bargaining, we would need several times the number of judges,
lawyers, bailiffs, court reporters, etc., to dispose of ever-increasing dockets. The
majority of all criminal cases are now resolved by plea bargain.


STEP 3: EVIDENCE

The third step in the criminal justice process is the presentation of evidence, or
what we commonly know as a trial. In Texas, we have bifurcated trials. The first
phase – the trial on guilt or innocence – requires the state to prove ―beyond a
reasonable doubt‖ that the defendant committed the charged offense. The
second phase – the trial on punishment – concerns the sentence that is to be
assessed.




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The type of trial (jury or bench/judge) and whether the first phase of the trial
regarding the defendant’s guilt or innocence occurs depends on the defendant’s
plea (guilty vs. not guilty) and elections (jury assess punishment).

      Not Guilty Plea: A defendant has a constitutional right, unless waived, to
       a trial by jury in order to determine the person’s guilt or innocence. If
       waived, a bench trial will take place and the judge will determine the
       defendant’s guilt or innocence. TCCP art. 1.13. A defendant has a
       statutory right, not a constitutional right, to have a jury determine the
       person’s punishment. If the defendant is found guilty, the judge will
       assess the punishment, unless the defendant makes a written election for
       jury sentencing. TCCP art. 37.07, § 2(b).

      Guilty or No Contest: The defendant waives the right to a jury trial, and
       the judge will assess the punishment, unless the defendant requests that
       the jury assess the punishment. TCCP art. 26.14. A hearing will be held
       for the introduction of evidence to determine the appropriate sentence.

After the evidence has been presented, we have the fourth step in the criminal
justice process, the VERDICT.


STEP 4: VERDICT/FINDING

There is a ―verdict‖ of guilty or not guilty by the jury, and a ―finding‖ of guilty or not
guilty by the judge. If the defendant is found not guilty, he is ―acquitted‖ and gets
to go home. The jury may also make findings of true or not true on any special
pleas submitted to them.

For regular community supervision, if the person is found guilty, then punishment
is assessed. Remember, for a person on deferred adjudication community
supervision, the defendant entered a plea of guilty or nolo contendere, but the
court placed the person on deferred adjudication without entering a finding of
guilt (i.e., judgment was deferred).


STEP 5: ASSESSMENT OF PUNISHMENT

Punishment is assessed in regular community supervision and shock community
supervision, but not in deferred adjudication community supervision. If the
defendant is found guilty or pleads guilty, the judge will assess the punishment,
unless a written election for jury sentencing is made. The jury will also assess
punishment if the defendant files a written sworn motion for regular community
supervision before trial. TCCP art. 37.07, § 2(b)




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There are different procedural and eligibility requirements regarding community
supervision depending on whether the jury recommends it or the judge grants it.

A. Jury

Regular community supervision is the only type of community supervision that a
jury can recommend. The defendant must meet four requirements to be eligible
for the jury to recommend community supervision:

   1. The sentence assessed by the jury must not be for more than 10 years;
      TCCP art. 42.12, § 4(d)(1).
   2. the jury must find that the defendant has never previously been convicted
      of a felony; TCCP art. 42.12, § 4(e). A defendant who had previously
      been on regular community supervision for a felony is ineligible, but a
      defendant who had previously been on deferred adjudication community
      supervision for a felony is eligible.
   3. the defendant must have filed a written, sworn motion requesting
      community supervision before the trial began; TCCP art. 42.12, § 4(e),
      and
   4. the instant offense is not for certain specified offenses (murder, certain
      sexual, drug, or 3g offenses). In 2007, the legislature passed legislation
      that expanded the offenses that were no longer eligible for jury
      recommended community supervision. TCCP art. 42.12, § 4(d).

B. Judge

Unlike requesting a jury to recommend community supervision, there are no
motions filed to request regular community supervision and a previous felony
conviction does not prohibit the judge from granting.

There are three situations where a judge may not grant regular community
supervision to a person:

   1. The sentence assessed is for more than 10 years;
   2. the person is convicted of a 3g offense
   3. if there is a finding that a deadly weapon was used in connection with the
           offense.

A judge is prohibited from granting deferred adjudication community supervision
to a defendant who has pleaded guilty or nolo contendere to certain offenses.
TCCP art. 42.12, § 5(d), They include:

   1. certain intoxication offenses including DWI with a child passenger,
      intoxicated assault and intoxication manslaughter;
   2. certain sex offenses; and
   3. a second conviction for certain drug offenses in drug free school zones.



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STEP 6: IMPOSITION OF SENTENCE

The trial court both orally pronounces the assessed sentence and enters a
judgment, a written declaration of the sentence. When there is a prison or jail
sentence, the sentence begins with its imposition. A judge is required to give the
defendant credit on his sentence for the time spent in jail for the case, except
there is no credit for confinement served as a condition of community
supervision. TCCP art. 42.03(2)(a). (See the section on revocation of
community supervision for exceptions regarding time credit and treatment in a
community correction facility).

Initially, it is necessary to understand that community supervision has two
components—the person was convicted of the offense and the punishment
assessed (steps 4 and 5) and setting the term of community supervision when
the sentence is suspended rather than imposed (step 6). It is customary, for the
punishment assessed and the term of community supervision to be the same, but
it is not required by law. For example, a ten year punishment may be probated
up to ten years, but it could be less. If a defendant violates the conditions of his
community supervision, he may have his probation revoked and be sentenced for
up to ten years in TDCJ-CID.

For a defendant who is granted deferred adjudication, there is no finding of guilty
(i.e., they aren’t convicted of an offense) so no punishment was assessed or
imposed.

A. Terms Of Community Supervision

The minimum and maximum term for community supervision depends upon the
offense of conviction, the date the offense was committed, and the type of
community supervision granted.           The judge always sets the terms and
conditions, even if the jury granted it.

For defendants convicted of most 1st and 2nd degree felonies, and some 3rd
degree felonies, and placed on regular community supervision the term cannot
be less than the minimum punishment for the offense nor more than 10 years.
TCCP art. 42.12, § 3(b). For defendants placed on deferred adjudication the
maximum period is the same as regular community supervision, and, except for
certain sexual offenses, there is no minimum period of supervision. TCCP art.
42.12, § 5.

For state jail felonies, a person granted regular community supervision, the
minimum period is two years and the maximum is five years. TCCP art. 42.12,
§ 15(b). Section 15 only applies to persons ―convicted‖ of a state jail felony,




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therefore, for a person placed on deferred adjudication, there is no statutory
minimum term and the maximum term is 10 years. TCCP art. 42.12, § 5.

For certain sexual offenses against children, the minimum term is five years.
TCCP art. 42.12, § 3(f) For a conviction of burglary of a vehicle, with the
punishment enhanced due to a prior burglary of a vehicle, the minimum period of
supervision is one year. TCCP art. 42.12, § 3(h)

In 2007, the legislature decreased the maximum term from 10 years to five years
for 3rd degree felonies under Penal Code Title 7, Offenses Against Property,
(except for Online Solicitation of a Child) and offenses under the Controlled
Substances Act. TCCP art. 42.12, § 3(b)(2)

For misdemeanor offenses, there is no statutory minimum term and the
maximum term is two years. TCCP art. 42.12, § 3(c).

See Extending Community Supervision Term below for information on extending
terms.

The defendant is, for our purposes, on community supervision. He has a
suspended sentence. If he successfully completes community supervision, he
will be discharged from the system. If he does not comply with the terms and
conditions of community supervision, he is subject to a motion to revoke his
community supervision and a revocation hearing.

B. Revocation Of Community Supervision

Normally, when a defendant fails to comply with the terms of community
supervision, a violation report is filed with either the State’s attorney or the judge.
TCCP art. 42.12, § (21)(b). If the State’s attorney or judge believes the violation
is severe enough to have a day in court, then a motion to revoke community
supervision is filed and a warrant (or capias) is issued.

Although the CSO files the violation report, it is the prosecutor who files the
motion to revoke and the judge who orders the arrest. The CSO may do all the
paperwork, but the prosecutor and judge are the ones who authorize proceeding
with the hearing.

After the defendant is arrested or notified to be in court, he enters a plea of ―true‖
or ―not true‖ to each of the allegations in the motion to revoke. He may choose to
enter into plea bargaining with the State’s attorney. If the defendant is not
released on bail, then on a motion by the defendant, the judge is required to have
a revocation hearing within 20 days of the defendant’s motion being filed. TCCP
art. 42.12, § (21)(b).




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The revocation hearing appears as if it is a regular criminal proceeding, yet it is
more akin to an administrative hearing. It is for the sole purpose of determining
whether the defendant violated the terms and conditions of community
supervision. Because of the possibility of the loss of freedom, the defendant can
either hire a lawyer or have one appointed for him. TCCP art. 42.12, § (21)(d).
There is no jury, and the judge only has to find proof by ―preponderance of the
evidence‖ that the defendant violated one of the conditions. In 2007, the
legislature enacted HB 312 which provides that if the only alleged violation is the
defendant’s failure to pay compensation to appointed counsel, community
supervision fees, or court costs, the state must prove by a preponderance of the
evidence that the defendant was able to pay and did not. TCCP art. 42.12,
§ (21)(c). The new law is applicable to all hearings after 9-1-2007, irrespective of
the date of the underlying offense or alleged non-payments. Previous law
required the defendant to raise inability to pay as an affirmative defense.

In a regular criminal proceeding, the judge or jury must be convinced ―beyond a
reasonable doubt‖ before determining the defendant is guilty. For the purposes
of a revocation hearing, proof of a violation of a term or condition of community
supervision is by a ―preponderance of the evidence,‖ which is thought of as more
likely than not.

After the presentation of evidence, the judge has one of two findings to make.
One is ―no violation,‖ at which point the allegations are found ―not true‖ and the
defendant is encouraged to comply with the conditions of community supervision
and not engage in any behavior that gives the appearance of non-compliance.

The other option the judge has is to find that a violation did occur. The judge
does not have to find that all of the allegations are true. To revoke community
supervision, just one allegation needs to be found true by the judge.

The judge has four options if violation(s) is/are found to be true as per TCCP art.
42.12, §§ 22, 23:

   1.   continue on community supervision
   2.   modify conditions to include any number of appropriate sanctions
   3.   extend community supervision term
   4.   revoke

1. Modify Conditions:

After the required hearing regarding the violation of the defendant’s conditions,
the judge may impose other conditions of supervision, including increasing the
number of required community service hours, increasing the defendant’s fine, or
placing the defendant in a substance abuse felony abuse program. TCCP art.
42.12, § 22(a)




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2. Extend the Community Supervision Term:

The court may extend the period of community supervision on a showing of good
cause for most 1st, 2nd, or 3rd degree felonies, but the term may not exceed 10
years. TCCP art. 42.12, § 22(c). Certain sex offenses may be extended an
additional 10 years past the original maximum. TCCP art. 42.12, § 22A(b). For a
state jail felony, the term may not exceed 10 years, but the statue does not
require a ―showing of good cause.‖ TCCP art. 42.12, § 15(b).

For misdemeanor offenses, the term may be extended up to one additional year,
not to exceed a total of three years. Under certain conditions, the term may be
extended an additional two years, for a total of five years, if the defendant fails to
pay certain fines, costs, and restitution. TCCP art. 42.12, § 22(c).

3. Revocation:

The judge may also revoke community supervision and impose the original
sentence. The judge has the discretion to reduce the original sentence that was
suspended, but the judge may not increase the original sentence that was
assessed. TCCP art. 42.12, § 23(a). The defendant gets no credit for time
served on community supervision against any TDCJ-CID sentence assessed by
the judge.

In 2007, the 80th Legislature enacted HB 1678 to require a judge, upon
adjudication or revocation of a defendant’s community supervision, to give the
person credit for time actually served in a substance abuse felony punishment
facility or another court-ordered residential program or facility as a condition of
supervision if the program was successfully completed. TCCP arts. 42.03,
42.12, § 23.




Relation of Revocation and New Criminal Offense

What if one of the allegations involves a new criminal offense? There are some
alternatives from which the judge can choose.

   1. may revoke community supervision before the new charge is tried;
   2. may revoke community supervision and proceed with the new offense (if
      pursuant to a plea bargain agreement);
   3. may revoke community supervision and dismiss new charge (if pursuant
      to a plea bargain agreement;)
   4. can revoke community supervision in spite of the acquittal of the new
      charge (remember, the judge only has to find that an allegation is true by a




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      preponderance of the evidence in a revocation proceeding, whereas in a
      trial on the merits the standard is proof beyond a reasonable doubt).

Timeline When Regular Community Supervision Can Be Revoked

In order for a revocation proceeding to be legal, certain steps have to be done in
a timely manner. First, the motion must be filed to revoke, continue, or modify
the community supervision and the arrest warrant (or capias) must be issued
before the term of community supervision expires. The hearing can be held after
the term expires and the judge retains the power to revoke, to continue, or to
modify the community supervision or to discharge the defendant. TCCP art.
42.12, § 21(e). If the motion is filed before the end of the term, the term may be
extended if the judge acts ―before the first anniversary of the date on which the
period of supervision expires.‖ TCCP art. 42.12, § 22(c).

In 2003, the legislature limited the due diligence defense to revocations on the
grounds of either failure to report or failure to remain within a specified place.
This is an affirmative defense, and as such, the defendant has the burden to
prove that the state did not use due diligence in either apprehending the
defendant or conducting the revocation hearing. The statute defines due
diligences as one attempt to contact or attempt to contact the defendant in
person at the last known residence or employment address as reflected in the
CSCD files. TCCP art. 42.12, § 24.

What happens if you discover that the defendant’s community supervision
expired yesterday and he still owes back supervision fees?

On March 13, 2006, the Office of Attorney General of Texas issued Opinion No.
GA-0413 which provides that probation defendants that have been
administratively released at the expiration of the community supervision period
are no longer subject to the conditions of community supervision, including the
payment of fines, fees and court costs, after the date the period of community
supervision expires. Therefore, you must follow the procedures outlined in article
42.12 and ensure that both the motion to revoke (or adjudicate in the case of
deferred adjudication cases) and the arrest warrant are issued BEFORE the term
of community supervision expires so that, as we noted earlier, the court retains
jurisdiction over the case. In some cases, before the expiration of the term of
community supervision, when there has been a failure of the probationer to pay
administrative fees and costs, the trial court may issue a summons in order to
bring the probationer before the court and secure compliance informally rather
than the State filing a motion to revoke community supervision. TCCP art.
23.031.

Having examined the granting of regular community supervision and its
revocation, let us examine what happens in deferred adjudication cases.




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C. Proceeding To Judgment In Deferred Adjudication

Recall that in deferred community supervision, guilt has not yet been adjudicated.
If an alleged violation occurs, a violation report is filed by the CSO. Then the
prosecutor may file a ―motion to proceed to judgment‖ or ―motion to adjudicate.‖
The state is required to give the defendant an opportunity to present evidence in
mitigation of the punishment before the judge assesses and imposes the
sentence. Under such a circumstance, the hearing would be conducted in two
phases, the first on whether to enter a finding of guilty and the second on what
sentence to assess and impose.

The judge has a hearing, and if he makes a finding of ―true‖ to any alleged
violation, he can exercise one of two options. The judge can adjudicate guilt and
place the defendant on regular community supervision, if the defendant is
eligible. Or the judge can sentence the defendant to TDCJ-CID for any number
of years within the entire original punishment range. So if the defendant received
8 years deferred adjudication for Burglary of a Habitation, the punishment is not
restricted to 8 years, but may be within 2-20 years or, in some enhanced
punishment cases, 5-99 years or life. This is different than regular community
supervision, where the judge cannot impose a sentence greater than the original
sentence. See T EXAS PENAL C ODE §§ 30.02 (a)(2), (d)(1), (d)(2).

In 2007, the legislature enacted SB 909, which allows a defendant to appeal a
judge’s decision to adjudicate him guilty of violating the conditions of supervision.
The new law is applicable to any decision to adjudicate after 6-15-2007.
Previous law did not allow the defendant this right to appeal.

STEP 7: EXECUTION OF PUNISHMENT

After a trial court imposes a sentence of incarceration, the execution of the
sentence begins when the defendant is actually incarcerated, either in jail or
prison.

For shock community supervision, the assessed punishment is imposed and the
execution of the sentence is actually begun by incarceration of the defendant.
The trial court may suspend further execution of the sentence and place the
defendant on community supervision or "shock probation." TCCP art. 42.12,
§ 6(a). Remember, in regular community supervision the ―imposition‖ of the
sentence is suspended, but in shock community supervision the ―execution‖ of
the sentence is suspended.



C. DIFFERENCE BETWEEN REGULAR AND DEFERRED ADJUDICATION
COMMUNITY SUPERVISION




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Under regular community supervision, the defendant is convicted of the offense,
punishment is assessed, and then sentence is suspended, rather than imposed.
Under deferred adjudication, the defendant pleads guilty or nolo contendere to
the offense, the criminal proceeding is suspended and the defendant is placed on
community supervision without a finding of guilt.

There are 10 areas of difference between regular and deferred adjudication
community supervision.

1. Who Can Give

For regular community supervision there must be a plea of not guilty, guilty, or
nolo contendere. Regular community supervision can be granted by either a
judge or a jury.

For deferred adjudication community supervision there must be a plea of either
guilty or nolo contendere and only the judge can grant. TCCP art. 42.12, § 5.

2. Eligibility

There are different procedural and eligibility requirements regarding community
supervision depending on whether the jury recommends it or the judge grants it.

       A. Regular Community Supervision

                 1. Jury

Regular community supervision is the only type of community supervision that a
jury can recommend. The defendant must meet four requirements to be eligible
for the jury to recommend community supervision:

   1. The sentence assessed by the jury must not be for more than 10 years;
      TCCP art. 42.12, § 4(d)(1).
   2. the jury must find that the defendant has never previously been convicted
      of a felony; TCCP art. 42.12, § 4(e). A defendant who had previously
      been on regular community supervision for a felony is ineligible, but a
      defendant who had previously been on deferred adjudication community
      supervision for a felony is eligible.
   3. the defendant must have filed a written, sworn motion requesting
      community supervision before the trial began; TCCP art. 42.12, § 4(e),
      and
   4. the instant offense is not for certain specified offenses (i.e., murder,
      certain sexual, drug, and 3g offenses). In 2007, the legislature passed
      legislation that expanded the offenses that were no longer eligible for jury
      recommended community supervision. TCCP art. 42.12, § 4(d).




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              2. Judge

Unlike requesting a jury to recommend community supervision, there are no
motions filed to request regular community supervision and a previous felony
conviction does not prohibit the judge from granting. There are three situations
where a judge may not grant regular community supervision to a person: TCCP
art. 42.12, §§ 3,3g.

   1. The sentence assessed is for more than 10 years;
   2. the person is convicted of a 3g offense; (See Appendix A for a list) or
   3. if there is a finding that a deadly weapon was used in connection with the
      offense.

        B. Deferred Adjudication

A judge is prohibited from granting deferred adjudication community supervision
to a defendant charged with certain offenses. TCCP art. 42.12, § 5(d). They
include:

   1.   certain intoxication offenses including DWI with a child passenger,
      intoxicated assault and intoxication manslaughter;
   2. certain sex offenses; and
   3. a second conviction for certain drug offense in drug free school zones

        C. Minimum Period of Community Supervision

For defendants convicted of most 1st and 2nd degree felonies, and some 3rd
degree felonies, and placed on regular community supervision the term cannot
be less than the minimum punishment for the offense nor more than 10 years.
TCCP art. 42.12, § 3(b). For defendants placed on deferred adjudication the
maximum period is the same as regular community supervision, and, except for
certain sexual offenses, there is no minimum period of supervision. TCCP art.
42.12, § 5.

For state jail felonies, a person granted regular community supervision, the
minimum period is two years and the maximum is five years. TCCP art. 42.12,
§ 15(b). Section 15 only applies to persons ―convicted‖ of a state jail felony,
therefore, for a person placed on deferred adjudication, there is no statutory
minimum term and the maximum term is 10 years. TCCP art. 42.12, § 5.

3. Right to Bail for Community Supervision Violations

If a defendant has violated his community supervision, a motion to revoke is
prepared and filed, a warrant is issued, and the person is arrested on the
warrant. Although the Texas Constitution provides that all persons are bailable, it



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only applies to persons who are being held prior to conviction of the offense.
Since the person on regular community supervision has been convicted, it is
discretionary with the judge as to whether to allow bail pending a motion to
revoke. Ex Parte Jones, 460 S.W.2d 428, 431 (Tex. Crim. App. 1970). TEX.
CONST ., art. I, § 11. If he is not released on bail, he can file a motion to require
the judge to hold a revocation hearing within 20 days of the defendant filing the
motion. TCCP, art. 42.12, § 21(b). A person on felony deferred adjudication has
not been convicted so the judge must set bail. Ex Parte Laday, 594 S.W. 2d 102
(Tex. Crim. App. 1980). Persons on misdemeanor community supervision are
also entitled to bail as the Court of Criminal Appeals has found that the need for
their detention is not as great as those convicted of a felony. Ex Parte Smith,
493 S.W. 2d 958, 959 (Tex. Crim. App. 1973); TEX. C ONST. art. 1, § 11.



4. Eligibility for Early Discharge from Community Supervision

There are two methods by which a person may be discharged from regular
community supervision after successfully fulfilling all of the conditions. The first
is when the judge discharges the defendant after he has completed his entire
term. The defendant is considered as having been convicted of a felony, except
for under certain circumstances. (i.e., not considered a final felony conviction for
enhancement purposes.)

Additionally, a defendant is eligible for early termination after he has served 1/3
of the time or 2 years, whichever is less. TCCP art. 42.12, § 20. In 2007, the
legislature enacted HB 1678 which requires a judge to review every defendant’s
record to consider whether to reduce or to terminate community supervision after
the greater of one-half of the original community supervision period or two years
of community supervision. This requirement does not apply to offenders who are
delinquent in paying restitution, fines, costs or fees that they have the ability to
pay or those offenders who haven’t completed court-ordered counseling or
treatment.

The second method, ―judicial clemency,‖ authorizes a judge to dismiss the
indictment and set aside the conviction in addition to discharging the person from
community supervision. This method releases the defendant from ―all penalties
and disabilities‖ resulting from the conviction. A defendant whose conviction was
set aside under this method is not considered a convicted felon under Penal
Code § 46.04, Unlawful Possession of a Firearm, but is considered convicted
under Government Code § 411.711, Concealed Handgun License.

Neither method applies to a defendant convicted of offenses under Section
49.04-49.08 in the Penal Code (Driving while intoxicated, driving while
intoxicated with a child passenger, flying or boating while intoxicated, assembling
or operating an amusement ride while intoxicated, intoxicated assault or



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intoxicated manslaughter), nor does it apply to sex offenders subject to
registration under Chapter 62 of the TCCP or a defendant convicted of a felony
described by section 3g. TCCP art. 42.12, § 20(b).

Section 20 does not apply to a defendant on deferred adjudication. This
defendant is immediately eligible for early discharge as there is no minimum
period of supervision. TCCP art. 42.12, § 5

5. Eligibility for Community Supervision Later

A defendant has served a three year community supervision term. He
successfully discharges but six months later he is re-arrested on new charges.
What are the chances that he will return to your caseload?

If he was on regular community supervision for a felony offense, it counts as a
conviction and will preclude a jury from granting community supervision.

If he was on deferred adjudication community supervision before, he is not
precluded from receiving community supervision because there was no
conviction, but the jury is informed of the previous deferred adjudication. TCCP
art. 42.12, § 5(c)(1).

Under certain circumstances, the judge can grant community supervision
whether the defendant has prior regular or deferred adjudication community
supervision. (See Community Supervision Eligibility)

6. Confinement as a Condition of Community Supervision

Just because a defendant receives community supervision does not necessarily
mean he will not be confined. The court has authority to require the defendant to
submit to confinement in a jail, prison, or a community correctional facility.

      A. Both Regular and Deferred Adjudication Community Supervision

The judge may require as a condition of community supervision a defendant
charged with a felony, except a state jail felony, to submit to c onfinement up to
180 days in jail, and a defendant charged with a misdemeanor to submit to
confinement up to 30 days in jail. The time may be served in one block or in
multiple segments, but can’t exceed the maximum time. TCCP art. 42.12,
§ 12(a).

A judge may require a defendant on community supervision for a state jail felony
to submit to confinement in a state jail facility between 90 and 180 days or
between 90 days and one year if convicted of certain drug offenses. TCCP art.
42.12, §§ 5(d), 15; TEX. GOV’T CODE § 507.001.




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A defendant could receive 24 months in a Community Corrections Facility (a
residential facility as defined by Government Code § 509.001). If he is
sentenced to jail in addition to CCF, the total term cannot be more than 36
months. TCCP art. 42.12 §§ 12(b), 18(b), (h).

A defendant may receive 90 days to one year in a Texas Department of Criminal
Justice substance abuse treatment facility (SAFPF) as a condition of felony
community supervision, if he qualifies for the program. TCCP art. 42.12, § 14(a).

       B. Regular Community Supervision

A judge must require a person convicted under Chapter 49, Penal Code
(Intoxication Offenses) to submit to a certain amount of time based on previous
DWI convictions: TCCP art. 42.12, § 13.

      2nd DWI                     at least 72 continuous hours or 5 days in jail
      3rd DWI                     at least 10 days in county jail
      Intoxication Assault        at least 30 days in county jail
      Intoxication Manslaughter   at least 120 days confinement
      Involuntary Manslaughter    at least 120 days confinement

7. Sentence Upon Revocation

To review, if a defendant is on regular community supervision, the sentence can
be no longer than the punishment originally assessed. It can also be reduced to
the minimum for that offense.

For deferred adjudication, the defendant may receive any sentence within the
original punishment range.

8. Federal Firearms (18 U.S.C. § 922(g), (n))

Under the Federal Firearms Control Act, a defendant ―convicted‖ of, or under
indictment for, an offense with a maximum punishment of more than one year in
prison may not possess, ship, receive or transport a firearm or ammunition.
Firearms include rifles and shotguns, as well as handguns. State law determines
if there was a conviction.

A defendant on regular community supervision may not continue to possess
firearms or ammunition, and must remove them from the person’s home. A
defendant who was discharged from regular community supervision is
considered ―convicted,‖ but a defendant who was granted ―judicial clemency‖
where the judgment was set aside and the person was discharged is not
considered ―convicted‖ under this statute.




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A defendant on deferred adjudication, or under an indictment for a felony, may
keep any firearms or ammunition the person currently possesses but may not
purchase or receive a firearm or ammunition. Also, the statute is not applicable
to a person convicted of a misdemeanor.




9. State Firearms

      A. Unlawful Possession Of Firearm

Section 46.04(a), Texas Penal Code, provides that it is illegal for anyone
convicted of a felony to possess a firearm before the fifth anniversary of the
person's release from incarceration or the person's release from supervision
under community supervision, parole, or mandatory supervision, whichever date
is later.

After this five-year period, they cannot possess a firearm at any location other
than the premises at which they live.

A defendant on regular community supervision who was discharged is
considered ―convicted,‖ but a defendant who was granted ―judicial clemency‖
where the judgment was set aside and the person was discharged is not
considered ―convicted‖ under this statute. Cuellar v. State, 70 S.W.3d, 815, 820
(Tex. Crim. App. 2002. The statute also does not apply to a person granted
deferred adjudication.


      B. License To Carry A Concealed Handgun

A defendant who received regular community supervision for a felony is
considered ―convicted‖ under the concealed handgun law and is not eligible to
obtain a concealed handgun license even if the person was discharged from
community supervision and the indictment was dismissed. TEX. GOV’T CODE §§
411.171(4), 411.172(3). A defendant who has received deferred adjudication for
felony, except for felonies under Penal Code, Title 5 (offenses against a person)
or Chapter 29 (robbery), is eligible to obtain a concealed handgun license
10 years after the order of deferred adjudication was entered. TEX. GOV’T CODE
§§ 411.1711.

      C. Domestic Violence Assault

There are additional restrictions for domestic violence offenses. A person
convicted of a Class A misdemeanor or higher level of domestic violence offense
loses all firearms rights for five years after confinement or community



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supervision. Persons with restraining orders, either pre or post domestic
violence convictions, lose rights until the order is lifted, with the exception of
police officers, who retain their weapons while on duty.

10. Right to Vote (Election code §11.002)

A defendant is not eligible to vote while on regular community supervision for a
felony conviction, but the right is restored after he fully discharges his sentence.
A defendant on felony deferred adjudication supervision case is not considered
convicted for voting rights purposes. The statute does not apply to misdemeanor
convictions.

Before we leave the subject of regular and deferred adjudication community
supervision, there is one benefit of receiving a deferred adjudication for certain
offenses that must be discussed. It is called an order of nondisclosure – and if
you are not aware of it, you could expose yourself and your department to
potential liability.




ORDER OF NONDISCLOSURE

In 2003, the 78th Legislative Session amended the Texas Government Code,
Section 411.081, and enacted Section 552.142 to permit the nondisclosure of
some deferred adjudication cases. However, the amendments made the records
accessible to law enforcement and prosecutors for purposes of establishing a
criminal history and provided for a civil penalty for private entities that violate the
nondisclosure provision.

In 2005, the 79th Legislative session made further amendments to Sec. 411.081
which clarified the entities to which a criminal justice agency could disclose
information regarding an individual that has received an order of nondisclosure

According to Texas Government Code, Section 411.081 (d), if a person is placed
on deferred adjudication community supervision, subsequently receives a
discharge and dismissal under Section 5 (c), Article 42.12, and satisfies the
requirements of Subsection (e) (of Section 411.081), the person may petition the
court that placed him on deferred adjudication for an order of nondisclosure.

Under this subsection, with some exceptions, a person may petition the court
regardless of whether they’ve had a previous deferred adjudication community
supervision. If successful, a court issues an order that prohibits criminal justice
agencies from disclosing to the public criminal history record information related
to that particular offense.




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A criminal justice agency may disclose criminal record information that is the
subject of the order only to other criminal justice agencies, for criminal justice or
regulatory licensing purposes, an agency listed in Texas Government Code, or
the person who is the subject of the order.


A person can petition for an order of nondisclosure only if he/she is not convicted
of or placed on deferred adjudication community supervision for any offense
other than an offense under the Transportation Code punishable by fine only. A
person is not entitled to petition the court for an order of nondisclosure if he/she
has been previously convicted of or placed on deferred adjudication for:

(1) an offense requiring registration as a sex offender under Chapter 62, Code of
    Criminal Procedure;

(2) an offense under Section 20.04 [Aggravated Kidnapping] regardless of
    whether the offense is a reportable conviction or adjudication for purposes of
    Chapter 62, Code of Criminal Procedure [Sex Offender Registration];

(3) an offense under section 19.02 [Murder]; 19.03 [Capital Murder]; 22.04
    [Aggravated Kidnapping] , 22.041[Abandoning or Endangering Child]; 25.07
    [Violation of Protective Order or Magistrate]; or 42.072 [Stalking], Penal Code;
    or

(4) any other offense involving family violence, as defined by Section 71.004,
    Family Code.

A person whose criminal history information has been sealed under an Order of
Nondisclosure is not required in any application for employment, information, or
licensing to state that the person has been the subject of any criminal proceeding
related to the information that is the subject of an order issued under this section.

Criminal record information is not public information available to the public if an
order of nondisclosure with respect to a deferred adjudication has been issued.
(Tex. Gov’t Code, Section 552.142 (a).)

A person who is the subject of an order of nondisclosure may deny the
occurrence of the arrest and prosecution to which the information relates, unless
the information is being used against the person in a subsequent arrest. (Tex.
Gov’t. Code, Section 552.142 (b).)

Now that we’ve looked at some differences between regular and deferred
community supervision, let’s take a closer look at the characteristics of ―Shock‖
and state jail community supervision.

D. CHARACTERISTICS OF "SHOCK" COMMUNITY SUPERVISION



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a. Execution of Sentence Has Actually Begun

The shock community supervision judgment begins when it is imposed.

b. Continuing Jurisdiction of Trial Court (TCCP art. 42.12, Secs. 6, 7, 8)

In both felony and misdemeanor cases, the judge retains jurisdiction for 180 days
from when the sentence was executed.

c. No Previous Incarceration for Service of Sentence

If the offender has been in prison before, he is not eligible f or felony shock
community supervision. However, there is no such restriction for misdemeanor
or boot camp dispositions, but the person must otherwise be eligible for
community supervision (see community supervision eligibility).

d. Purpose of Shock Community Supervision

The purpose of shock probation is to give the offender the experience of prison
life so that he would thereafter become obedient and comply with the law. It was
intended that marginal risk community supervision offenders would be sentenced
to the Correctional Institutions Division and they would, after a period of time, be
brought back before the judge and be released on community supervision. They
would be so grateful at this chance that they would not think about messing up
and run the risk of having their sentence revoked. The theory was that most
offenders would not enjoy their taste of prison life and would therefore benefit
greatly from being on supervision instead.

Over time, the "shock" effect was lost on most offenders because plea bargaining
usually tips off the offender that he is not going to prison for the full length of his
term; instead he will only be incarcerated for a brief time.

e. Excluded Offenses (TCCP Art. 42.12 Sec. 6[a])

Shock community supervision has some very exclusive rules. First, the offender
must be eligible to receive community supervision from the judge. Second, the
punishment must be assessed at 10 years or less. Third, the offense cannot be
a 3g offense or one with a deadly weapon finding. Other than those guidelines,
there are no other excluded offenses.

f. Granting Shock Community Supervision

Only the judge, not the jury, can grant shock community supervision. The judge
can deny shock without a hearing. But, by law, the judge must give a hearing to




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grant shock community supervision to allow the State and defendant’s attorney to
present evidence. TCCP, Article 42.12, Section 6 (c).

g. Shock Community Supervision Term

The full term can be used: 10 years in felony cases and 2 years in misdemeanor
cases. The term begins when the person is released from incarceration and
placed on community supervision (judgment entered).

h. A Type of Regular Community Supervision for Revocation Purposes

Shock community supervision is a type of regular community supervision for
revocation purposes.

i. Felony "Boot Camp" (CCP art. 42.12, Sec. 8)

A male or female offender between the ages 17 to 25, physically and mentally fit,
otherwise eligible for community supervision, and not convicted of an offense
punishable as a state jail felony may receive Felony Boot camp as part of the
community supervision term. The offender will spend anywhere between 75 to
180 days incarcerated undergoing the same physical training program that
military "boots" receive. The theory behind boot camps is that offenders who
receive discipline, regimentation, and daily exercise will improve their self-esteem
and will be motivated into becoming law abiding citizens.


E. CONSIDERATION FOR STATE JAIL FELONY COMMUNITY SUPERVISION

Community supervision is required for defendants convicted of certain state jail
felonies under the Controlled Substance Act, and is authorized for other state jail
felonies. TCCP art. 42.12 § 15(a).

In 2007, the legislature made changes regarding mandatory community
supervision for certain state jail felonies committed after June 15, 2007.
Community supervision is mandated for a defendant who was previously
convicted of a felony that was punished under Penal Code § 12.44(a), Reduction
Of State Jail Felony Punishment To Misdemeanor Punishment.

a. Enhancements for State jail felony.

Current Offense      Enhanced        by Required                Statute
                     prior convictions Enhanced
                                          Penalty
State jail felony    Two prior state jail 3rd degree felony     § 12.42(a)(1)
                     felonies
State jail felony    Two prior felonies 2nd degree felony       § 12.42(a)(2)



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                  in sequence
State jail felony No prior offense 3rd degree felony              § 12.35(c)
with    a  deadly required
weapon or prior
3g offense
State jail felony Any prior felony 2nd degree felony              § 12.42(a)(3)
with    a  deadly
weapon or prior
3g offense


b. A Type of Regular or Shock Community Supervision

As with the traditional type of community supervision, punishment is either
assessed or postponed (deferred) in state jail felony community supervision. The
offender can receive the imposition or have partial execution of the judgment,
e.g., shock community supervision.



c. Extension

Like traditional community supervision, state jail felony community supervision
can be extended by the judge. The extension can occur up to one year after
expiration, provided the motion to revoke and capias were issued prior to the
expiration of the term. The rule for the maximum number of years is the original
plus extensions cannot exceed 10 years. TCCP, Article 42.12, Section 15 (b).

d. Confinement as a Condition of Community Supervision

If the judge chooses, a defendant can be placed in a state jail facility for a term of
not less than 90 days and no more than 180 days. If the offense is delivery of
Penalty Group 1 or 2 controlled substance or marijuana, the judge can order him
to a state jail facility for a period of time between 90 days and one year.
Remember, these periods of confinement are conditions of community
supervision, not shock. This condition can be imposed initially or as a
modification. As a modification, it cannot be less than 90 days or more than 180
days. TCCP, Article 42.12, Section 15 (d)(e).

e. Revocation Proceedings

Even though we are talking about state jail felonies, ordinary revocation
procedures apply.

If the community supervision is revoked, the offender is sentenced to a state jail
facility for a term between 180 days and the punishment originally assessed,


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which cannot be longer than 2 years. The judge may credit on a state jail facility
sentence time confined in county jail from the time of arrest until sentencing.

A judge shall credit the defendant’s sentence for the time spent in a substance
abuse treatment facility or another court-ordered residential program or facility if
the defendant successfully completes the treatment program in that facility.
TCCP Article 42.12, Section 15 (h) (2) and (3).

Unlike traditional incarceration, an offender confined in a state jail facility does
not earn good conduct time for time served in the facility. TCCP, Article 42.12,
Section 15 (h) (1). When they are released from the state jail, all supervision
ceases.

f. State Jail Felony Shock Community Supervision

If the judge decides he is going to ―shock‖ the offender on his state jail felony
conviction, the court will receive progress reports from the state jail facility every
90 days. The offender will not be eligible for shock community supervision until
after he has served 75 days. The judge may grant shock after 75 days of
sentence for as long as the person has been sentenced on a state jail charge.

As in traditional community supervision, further execution of sentence is
suspended and the offender is granted a community supervision term between
two and five years.

So far, we’ve explained the sequence of the criminal process, examined the four
types of community supervision in Texas, as well as some differences in regular
and deferred community supervision. There are two final considerations we must
discuss before we can complete our look at Texas Community Supervision Law:
what to do when an offender appeals an order placing him/her on community
supervision or revoking his/her community supervision and the characteristics of
pretrial intervention.


F. THE CORRECT PROCEDURE WHEN THERE IS AN APPEAL OF AN
ORDER PLACING A PERSON ON COMMUNITY SUPERVISION OR
REVOKING COMMUNITY SUPERVISION


Appeal from Granting Community Supervision

By law, a notice of appeal must be filed within 30 days of the granting of
community supervision. Tex. R. App. P., Rule 26.2 (a) (1). A motion for new trial
also has a 30-day window after the granting of community supervision. Tex. R.
App. P., Rule 21.4 (a).




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A notice of appeal suspends the order placing the offender on community
supervision. He should not be supervised during an appellate process, nor can
he be considered as direct for CJAD funding purposes. The offender will not be
on community supervision until the appellate court acts and affirms the trial
court’s decision.

If a motion for a new trial is filed, then the notice of appeal must be filed within 90
days of granting community supervision. Tex. R. App. P., Rule 26.2 (a) (2). This
is so the courts have an opportunity to rule on the motion for a new trial first,
giving both sides time to prepare for an appeal if a new trial is not granted.

To make sure the offender is actually on community supervision, check with the
clerk of court 60 days after community supervision is granted for notice of appeal
or motion of new trial.

Appeal From Revoking Community Supervision

If an offender files an appeal after his community supervision is revoked, the
appeal suspends the order revoking community supervision. As such, the
offender is still on community supervision during the time the appeal is active.
The offender should continue to be supervised if he is out of jail on an appeal
bond. The case would be considered direct for purposes of CJAD funding, if
supervision is continued and documented. The offender is still liable for further
violations and, should he continue to not comply, you can file another motion to
revoke and go through the revocation process again.

To make sure the offender’s community supervision was REALLY revoked,
check with the clerk of court 60 days after the revocation hearing for notice of
appeal or motion for new trial.

An appeal can take as little as 1 year to go through the system, or it may take 5
years. If the offender should successfully complete community supervision while
the revocation is on appeal, close out the case, he is no longer on community
supervision.



G. THE CHARACTERISTICS OF PRE-TRIAL INTERVENTION


Pre-trial intervention is sometimes referred to as deferred prosecution or pretrial
diversion. Texas Government Code, Section 76.011. It is NOT a type of
community supervision because it does not meet the definition of community
supervision as outlined in TCCP, article 42.12, Sec. 2 (2).

1. Essentially, it is an agreement between the prosecutor and the offender.



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            Texas Community Supervision Officer Certification Pre-Coursework



2. It usually occurs at the "charge" phase of the process.

3. The Community Supervision and Corrections Departments are allowed to
supervise the offender for up to two years and may claim these cases for funding
(felonies, but not misdemeanors).

4    In addition, a court may order the person to pay a supervision fee in an
amount not to exceed $60 per month. The court may also order the defendant to
pay or reimburse a CSCD for any other expenses incurred as a result of the
defendant’s participation in the pretrial intervention program. TCCP, Article
102.012 (a) and (b).

5. In 2007, HB2385 was enacted which allows a district attorney or county
attorney to collect a fee up to $500.00 to reimburse the county for expenses
related to the pretrial intervention program. TCCP Art. 102.012




                           Quick Quiz Review:
1. Identify the four types of community supervision in Texas.

       a)
       b)
       c)
       d)

2. Identify, in order, the steps in the sequence of the criminal process.

       1)
       2)
       3)
       4)
       5)
       6)
       7)


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            Texas Community Supervision Officer Certification Pre-Coursework



3. List the differences between regular community supervision and deferred
adjudication
   community supervision.

       a)                                           f)
       b)                                           g)
       c)                                           h)
       d)                                           i)
       e)                                           j)

4. Identify eight characteristics of ―shock‖ community supervision.

       a)                                           e)
       b)                                           f)
       c)                                           g)
       d)                                           h)

5. Identify seven characteristics of state jail felony community supervision.

       a)                                           e)
       b)                                           f)
       c)                                           g)
       d)




6. Identify the correct action to take when there is an appeal of an order placing a
   person on community supervision.




7. Identify the correction action to take when there is an appeal of an order
revoking
   community supervision.




8. Identify six characteristics of Pre-Trial intervention.



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           Texas Community Supervision Officer Certification Pre-Coursework



     a)
     b)
     c)
     d)
     e)
     f)




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