How one program works in Colorado County
Once the initial charging decision is reached in a case, a prosecutor is concerned with the appropriate resolution. Experience tells us that cases can be broken down into four simple categories:
• good people doing something stupid;
• bad people doing something stupid;
• good people doing something bad; and
• bad people doing something bad.
Cases in the first category are often the most difficult for prosecutors to resolve. Traditionally, Texas prosecutors have considered three options when dealing with the good people who’ve gotten themselves into stupid situations: deferred adjudication, probation, or jail. But Government Code §76.011 provides a fourth option: pretrial intervention.
Pretrial intervention is a form of supervision appropriate for some first offenders. It gives defendants a way to atone for their transgressions without many of the lingering effects of a deferred adjudication or conviction. Therefore, prosecutors should consider having a sound, well-thought-out pretrial intervention program in their arsenal. You’ll need your district court’s approval because while Government Code §76.011 authorizes community supervision and corrections departments to operate pretrial intervention programs, these departments are under the general supervision of the district court. (Sample forms for many programs discussed in this article are available online at www.tdcaa.com. Click on the Newsletter Archive button, and scroll down to the November-December 2007 issue stories.)
A well-designed program has clearly defined eligibility parameters. Failure to establish these parameters leads to inconsistent application, cries of favoritism, and the tendency for every defendant to seek pretrial intervention. Once the defense bar becomes familiar with your policy, most will restrict their requests to cases eligible under your program guidelines.
First, determine which classes of cases are eligible, depending upon your prosecutorial philosophy and the prevailing attitude in your jurisdiction. Some offices limit pretrial intervention to non-violent misdemeanors. Other jurisdictions may include state jail felonies. The only restrictions regarding eligibility for pretrial intervention are those defined by your office.
Once the eligible types of offenses are established, the eligible offenses within those classes must be defined. The simplest programs may limit participation to defendants charged with non-violent offenses. Larger counties may have multiple special programs tailored to respond to specific offenses (e.g., Tarrant County’s Assault Family Violence Program).
In addition to the offenses eligible for pretrial intervention, a good policy will define the criteria an offender must meet to be eligible for the program. Typically, participation in pretrial intervention programs is limited to first offenders. Additional restrictions may include current enrollment in high school or college or defendants who would otherwise face loss of a job or professional license.
Participation in Colorado County’s pretrial intervention program is limited to first offenders of high school or college age who are charged with non-violent misdemeanors who have never had a previous pretrial intervention and appear to have a legitimate opportunity for advanced studies or licensure. It is structured that way to eliminate impediments to their acceptance into college or graduate school or professional licensure.
In most jurisdictions, court days do not leave much time for cool reflection. Therefore, it is important to have an application procedure in place that allows a prosecutor to review a case file and an applicant’s information in depth before deciding to grant or deny pretrial intervention.
The application procedure may be initiated upon a prosecutor’s recommendation or at a defendant’s request. Regardless of who initiates the process, an application packet should contain, at a minimum, the following: a resume, school transcripts, character letters, and a sworn application.
The application itself should be sworn to enable prosecution for perjury if it occurs. The application should consist of probing questions that dig a little deeper into a defendant’s background than simply whether the defendant has been previously convicted or undergone a pretrial intervention. The application should inquire about prior juvenile and adult arrests regardless of outcome and prior placement in city or county jails. Additionally, the application should require the defendant to write his version of the offense to make sure he is accepting responsibility for his conduct.
Another equally important component of the application process is a personal interview with the defendant. It affords the prosecutor an opportunity to gauge the defendant’s sincerity through a no-holds-barred, cross-examination-style interview. The defendant should be informed that the interview is off-the-record and mandatory. Failure to submit to the interview without defense lawyer interruption or interference results in program ineligibility. This is that rare opportunity for a prosecutor to engage in a “Law and Order”-style interview while the defense lawyer sits uselessly on the sideline. Does the defendant appear contrite and comprehend that he has jeopardized his future? Or is he smug and uninterested in this “mere” formality before the prosecutor rubberstamps what he believes is already his? Did the defendant even bother to dress appropriately, cover his tattoos, and/or remove his piercings and studs?
The pretrial agreement
The pretrial intervention agreement should be detailed enough to document that the defendant understands his obligations. To participate in the program, the defendant should agree to the following: to serve a specific term of supervision, enter a plea of guilty or nolo contendre at a revocation, and to not receive credit for any fees paid or community service performed in the event of a revocation.
Moreover, the agreement should require the defendant to sign a plea memorandum under oath admitting the offense and waiving his right to a speedy trial and to a jury trial.
Pretrial intervention rules
Once placed into the pretrial intervention program, the local community supervision and corrections department will supervise the defendant. The defendant’s rules should be drafted in advance to ensure uniformity and that program goals are met. However, special cases may require a unique set of rules.
At a minimum, the program’s conditions should contain the standard rules used in probation cases. Preferably, special rules will be tailored to the crime committed, such as offense-specific classes, periodic urine analysis, or community service restitution tailored to the offense. Strict curfew is a good rule to impose to keep the defendant from being out at all hours and getting in more trouble.
Curfew. Be at your residence by 11:00 p.m. and remain there until 6:00 a.m. except when at work or on a direct route going to or from work.
The maximum term of a pretrial intervention is two years.1 The criminal case must be filed with the court and the judge must sign the agreement to authorize the defendant’s participation in the program.2
Once the paperwork is complete, the case should be reset until the end of the intervention period. At that time, the defendant’s criminal history should be ordered and examined for new entries. Once it is determined that the defendant successfully completed the pretrial intervention, the prosecutor should file a motion to dismiss the case.
Alternatively, in a procedure used in Tarrant County, the defendant enters a formal guilty plea, and the judge recesses the hearing for one year. If the defendant successfully completes the program, the hearing is reconvened, the defendant withdraws his plea, and the case is dismissed.
The agreement should detail the fees that the defendant must pay. The fees are similar to those of standard community supervision where the defendant may be ordered to pay a fee not to exceed $60 per month as a condition of participating in the pretrial intervention program.3 These fees must be deposited by the custodian of the county treasury into a special fund for the benefit of the community supervision department.4
In addition to the monthly participation fee, the court may order the defendant to pay or reimburse a community supervision and corrections department for any other expense incurred as a result of the defendant’s participation in the pretrial intervention program or that is necessary to the defendant’s successful completion of the program.5 Fees could be charged for drug or alcohol treatment, anger management, or other programs. These fees, too, must be deposited in the county treasury for the benefit of the community supervision department.6
Unlike community supervision, the prosecutor may charge a fee not to exceed $500 beginning September 1, 2007. The fee must be deposited in a special fund and used solely to administer the pretrial intervention program. It may be expended only as part of a budget approved by commissioners court.7
Invariably a small percentage of participants will violate the pretrial intervention agreement. A pre-determined policy on dealing with revocations can help avoid confusion and uncertainty regarding the proper response when such a situation presents itself.
The revocation standard can range from zero tolerance for violations to a sanctions ladder that escalates with the severity of the infraction. Seldom would revocation be sought for Class C offenses, for instance. A defendant’s refusal to accept an agreed sanction, either through an amended condition of pretrial intervention or the commission of a new offense sufficient to cause revocation, would result in the prosecutor docketing the case, sending a notice letter to the defendant, and going forward as if the defendant had never been placed in the pretrial intervention program.
Consistency is the key to a well-oiled program. The best practice is to work with the same probation officers to handle the pretrial intervention caseload. They will be familiar with the revocation standards and can implement the policy uniformly.
The overriding benefit of pretrial intervention is the State’s ability to punish, rehabilitate, and observe a defendant over an extended time while leaving open the successful defendant’s ability to expunge his record. Some prosecutors require a candidate to waive his ability to seek an expunction, but doing so may significantly reduce the value of a pretrial intervention. The best policy may be a compromise that requires a defendant to wait a predetermined amount of time before seeking an expunction.
If expunctions are allowed in felony cases, the defendant or his counsel should be aware that the Department of Public Safety is not bound by a district attorney’s agreement not to fight expunction.8 Additionally, most felony pretrial interventions will not meet the requirements of the Code of Criminal Procedure’s Art. 55.01 because the dismissal will not indicate a lack of probable cause.9
Because pretrial intervention is not court-ordered supervision under CCP art. 42.12, as long as the defendant was not charged by indictment or information with a felony arising out of the transaction underlying the misdemeanor, and assuming the defendant is otherwise eligible, the defendant may seek an expunction.10
Pretrial intervention programs can be as simple or as elaborate as necessary to accomplish their goals. Regardless of which type is appropriate, a sound program provides prosecutors with a tool to address crimes committed by otherwise good citizens and leaves offenders with the opportunity to move forward as productive members of their community.
1 Tex. Gov’t Code §76.011(a).
2 In Colorado County, the Pretrial Intervention Agreement and Rules of Community Supervision are treated as one document with the court’s authorization located at the end of the Rules. For clarity the Agreement and Rules have been discussed in separate sections in this paper.
3 Tex. Code Crim. Proc. art. 102.012(a).
4 Tex. Code Crim. Proc. art. 103.004(d).
5 Tex. Code Crim. Proc. art. 102.012(b).
6 Tex. Code Crim. Proc. art. 103.004(d).
7 Tex. Code Crim. Proc. art. 102.0121.
8 Texas Dep’t of Pub. Safety v. Katopodis, 886 S.W.2d 455 (Tex. App.—Houston [1st Dist.] 1994, no pet).
9 Texas Dep’t of Pub. Safety v. Solis, 2005 Tex. App. LEXIS 9553 (Tex. App.—San Antonio 2005, no pet).
10 Baker v. Texas Dep’t of Pub. Safety, No. 03-00-00441-CV, 2001 Tex. App. LEXIS 3020 (Tex. App.—Austin May 10, 2001, no pet.)(not designated for publication).