T - Voice For The Defense Online

Article 4212 (10) (e), Tevas Code of CritnindPmcedure.If a supervising officer or magistrate modifies the conditions ofcorm~m~~ity supervision, the officer or magistrate shall deliver acopy of the modiEed cond~tions to the defendaut, shdEIe a copyof the modified conditious with the seuteucing court, and shallnote the date of delivery of the copy in the defendant's file. Jftl~edefendant agrees to the modiocatiou iu writi~~g, the officer ormagistme sl~all Ble a copy of the modified conditions with thedjstict clerk and the conditions shall be enforced as n~odiEed.If the defendant does not agtee to the modfications in ur~iUug,the superviaon officer or tnagistnte sl~all refer the case to thejudge of the court for modifications in the same manner pmvidedby Section 22 of this a~ficle.Tlus section speaks directly to the n~odification of the original condit~ons ofsupe~visiou that were imposed at the time of the seutet~cing It is importaut touote that tl~isection does not require any allegation that the defendant has violateda conditiou of supe~~ision. It covisio~~s situat~ons where the modiocat~onrequest could be based upon the nee& of the defendant mther thm inresponse to the conunission of aviolatiou. Eveu UI the case of a ueeds basedniodifkatio~~, the legislature has specifically required that a modiation cannotbe enforced without the defendant's written agleemeut. If the defendautdoes not agvee, the statute ~equires that the rnatter be referred to the Court fordisposition iu the same manner in which violations are addressed, Wide thereis no comparable s$tute in Sectiou 508 of the Goverumeut Code, no one couldague with the concept that the releasee would be similarly bound to n1odi0-cations of supe~vision which he agreed to. Bowveer, the lrquirenmts of ahearing in this situation should se~w as notlce that when a violstiou of supervisiouoccuvs the need for aheahgprior to my modification becomes a11 evenstronger requirement.If there is alt allegation before the Court that the defendwt has comn~itted a violationof lus terms of s~pe~vision, the Court lnust hold a l~eariug aud mah adetern~iation that aviolatiou didin fact occur before rno*~g the couditionsArticle 42.12, Section 22If after a hearh~g uuder Sectiou 21 of this article a judge contillueor modifies coll~munity s~~pe~vision after detemn~~~g that thedefendant vlolatetl a condition of corrrmuity supewision, thejudge mayimpose my other conditions the judge determines areappropriate.The above language mirro~s the statutory rcquiroment placed on the Board.Section 508.283, Gotiert~menl CodeAfter a parole panel or designated ageut ofthe bomd has held ahearing under Sectio~~ 508,281, the board may, in any mannerwa~xuted by the evidence ... co~~tinue, rewke or modi paloleor nlandato~y supenision111e Stahltoly bngc~age is clear and consistent m botl~ the Govecm~ent Code audin the Code of CrW~al Procedure. Modiocatious of sopelvlsio~~ can beimposed without a hmrit~g ouly if the iudividual agrees to the modificationOthemise, both statutes require uotlce UI writing, a hearfi~g before the properauthority and a detetmiuatlatron by the proper authority that a aiolatioo hasoccurred. CerL?inly, wl~eu the modfication is made as a sanction for a viobtion,a Morrissey type hearkg camot be avoided witl~outhe Release'sconcmmncc.h the abseuce of dm$ expmsed leplative authority to the contmy, theBoard cannot sanction a relmsee and modify his supenision by confu~Qhim in an Intem~ediate Sanction Facilitywthout con~plying wit11 the languageiu tile Government Code or the dwimtivelanguage iuArticb 42.12. The odyconclusiou that can be reached is that the Board lacks the a~~thortty to modifyconditions of release based up011 an auegation of violation without eitherobtaiuiug the conseut of the meleasee or after l~olding a hea~iug to determineuhetl~er or uot a violati011 has occurred. The courts wil closely scrutiuize amodification that results in confinement without the d~re pmcess reqdremeritsof Mo~~isey being met.An examination of the Board's own policy statement in this area reflects thehitimg language previously cited iu the stah~tes and buttresses t11e obvio~scn~~clusio~~ that the Intermediate Sm~ctiou Facility placemeut is beiug used tosanction releasees who are alleged to havcviolaied conditions of supe~vision.BPI! POL. 00-04.14, SPBCW, C(~WITIOI\"TSP (!I\'TE~~~~TE,UI\'~IOAPACILITK)Tl~epolicy statemeut deh~es the IS! facility as ':. medto confine loiu riskreleasee8 tinder actiue superuision with no pending crintinul c~m~geswho have vlolated the conditions of release to parole or tnandato~ysrtperuisiorr.. "Tl~e Specid Courtition is fi11f11er dehed as sel-iug to ".. .pnnish, rehabilitateor ~wform a releasee in response to a uiolation of conditions ofrel~se to parole or ~nundntoty snperuision. "Additional language in the policy statement states that 'Tpecid Condition'7SF is intenden to afforda sanctiotr for n releasee ruho faih tocn~nply ruith the ternts and conditions of release topatole or man(1atorysnperuision."The Bomd's iuteut 1s descr~bed iu Ule policy statements as "Tl~egonl of theboutd inlposed specid condition "ISF is to prouide a sanction thatwin sem? topunlsl,, tshn6ilitale or tsfirin a ~wteasee for a violationof the cunditwns of release topaide or stiperuisioti."Again, the clear, direct and ~mambiguous language illustrates that this conditionisto be imposed as asauction for violations of conditions of release. Buthow, consistent with the language of the Goven~ment Code or the la~gunge hthe Code of Crimiud Procedure or the dictates contained in the Morrisseydecisiou, CXI the Boad determiue u~l~etl~er or uot a violahon has occumdwithout holding a hearing on the matter? It should be beyond discussiou atflus point in time that the Board camlot co&e a releasee who has bca~alleged to hwe committed a violation of relme without fust dFordh~g ldm ahearing to determine u~hetl~er or not the violation did in fact occur aadwhether or not the modicatiou is appropriate.In fact, the policy statement ~rcogniws this fact and spells out the procedurefur the in~positiou of the Special Couditiot~ "Aparolepanel, rtpon mjori-IJ' vole, mn(g1 impose special conditio~~ "!SP"IS N conditi~n ofparofe ortnandntoty sriperuisiorr tdpo~l an nffirt~rntivefinding tilnt a rrlenseeviolated om or tnorw of the conditions of release toparole or ntan~lnro-34 VOICE FOR THE DEFENSE ~.KDl.A.COM SEPlEMB6R 2001