Texas - Code of Criminal Procedure 42.12 Flashcards Preview

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Flashcards in Texas - Code of Criminal Procedure 42.12 Deck (114)
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1

How many sections are in 42.12?

24

2

Explain how "Due Diligence" of probation officer or department impacts revocation?

Sec. 24
Lack of Due Diligence is an AFFIRMATIVE Defense (D must prove me preponderance or evidence)
If violation of failure to report or remain within a specific place
Affirm. Def. that supervising officer (or other warrant officer) failed to contact or attempt to contact D in person at last known address or employment (as reflected in files of department)

3

What is the longest a Sex Offender can be on probation?

Sec. 22A
20 years (Original 10 and 10 yr. extension)
If CRT finds D "has not sufficiently demonstrated a commitment to avoid future criminal behavior and that the release of the D from supervision would endanger the public" CRT may extend for 10 years
THIS extension can only happen ONCE

4

What is the longest a D can be on Misd. Probation?

Sec. 21
5 years
Original 2 years
+1 year for "showing of good cause"
+2 years if D fails to pay fine, costs, or restitution

5

What is the deadline for extending probation?

Sec. 21
1 year (first anniversary) of date when supervision expires IF a motion to revoke is filed

6

What is the maximum number of community service hours a judge can impose?

Sec. 21 Assessed on Modification
Double amount originally authorized if modification of probation
Sec. 16 Originally Assessed
1000 for 1st Deg.
800 for 2nd Deg.
600 for 3rd Deg.
400 for SJF
200 for Class A (or hybrid over 180 days or $4000 fine)
100 for Class B (or hybrid under 180 days or $4000 fine)
Exceptions, also

7

What if CRT order community service for benefit of "target of defendant"?

Not less than 100 hrs for Misd.
Not less than 300 hrs. for Felony
If probation for OUTDOOR BURNING OF HOUSEHOLD REFUSE IN CERTAIN
RESIDENTIAL AREAS - minimum of 60 hours (trash or recycling related)

8

Can judge order donation in lieu of community service?

Yes, to food pantry or bank (non-profit)

9

What is considered a "Court" under 42.12?

Courts of Record - Sec 2

10

What is the minimum term of community supervision for a felony?

Same as the minimum term of confinement

11

What is the maximum term of community supervision for felonies (notwithstanding extensions)?

10 years
Other than for 3rd Deg.: 1. Property Crimes (excluding Solicitation of a Minor); and 2. Controlled Substance

12

What is the maximum term of community supervision for misdemeanors (notwithstanding extensions)?

2 years

13

What is the community supervision terms for sex crimes against children (notwithstanding extensions)?

Min. 5 years and Max. 10

14

What kind of sentence (not talking about 3g) prohibits judge from ordering community supervision?

Sentence exceeding 10 years
State Jail confinement sentence PC 12.35

15

What is the minimum term of community supervision for burglary of a vehicle (Class A Misd.)?

If minimum confinement is 6 months, then probation must be min. 1 year

16

How does deadly weapon impact ability to get community supervision?

Judge cannot grant community supervision if there is an affirmative finding of a "deadly weapon" per PC 1.07
Also, judge must enter finding as to whether weapon was a "firearm"
If "Firearm" + 2nd Deg. Felony (or higher) = 60 to 120 days in TDCJ as a condition

17

What length of sentence prohibits community supervision from jury?

sentence exceeding 10 years

18

What must D do to be able to get probation from jury?

File SWORN motion that not been convicted of felony
AND jury must find it to be true.

19

What controlled substance offense prohibits probation from the jury?

Possession of Controlled Substance in a School Drug Free Zone
IF previous conviction under same provision

20

What offenses is probation prohibited?

If victim is younger than 14:
1. Indecency - Sexual Contact
2. Agg. Sex. Assault
3. Sex. Assault
If victim younger than 14, and committed with intent to sexually abuse:
4. Agg. Kidnapping
5. Sex performance of child;
6. Compelling prostitution
7. Trafficking of persons
8. Murder

21

What must the judge find to grand deferred adjudication?

Judge's opinion that "the best interest of society and the defendant will be served"

22

What offenses that are not otherwise probation eligible may a judge placed a D on DFAJ?

1. Indecency - regardless of age
2. Sexual Assault - regardless of age
3. Agg. Sex. Assault - regardless of age
ONLY if judge makes finding in open court that placing D on community supervision is in the best interest of the victim

23

What must Judge do when placing D on DFAJ?

Warn orally or in writing - oral warning must be recorded - failure to warn is not grounds for reversal unless D shows he was harmed by failure

24

Can you get days as a condition when you're on DFAJ?

Yes.

25

When does D have to file motion to proceed to adjudication for mandatory adjudication by judge?

Within 30 days after plea

26

Can the judge proceed to adjudication based on failed polygraph?

No, not if polygraph is the ONLY evidence supporting the alleged violation - uncorroborated

27

What if crt proceeds to adjudication on a SJF that is a "mandatory probation" offense?

Judge can impose sentence (don't get two bites at apple)

28

When may the judge discharge DFAJ early?

If it's not a reportable sex offense;
any time if judge makes finding that "best interest of society and defendant" will be served

29

Is a DFAJ admissible at punishment phase of another trial?

Yes.

30

What kind of licensing can DFAJ be considered for under 42.12?

1. A child care facility under Chapter 42 of Human Resources Code;
2. Sex Offender Counselor