                                                The Attormy         General of Texas

        JIM MATTOX                                             AuI;ust20, 1984
        Attorney General



        Supreme      Court Building            Honorable Wilev 1,.h:heatham        Opinion No. JM-194
        P. 0. Box 12548                        District Attorney
        Aus!in.    TX. 78711. 2548             P. 0. Box 587                       Re: Duties of certain officials
        5121475~2501                           Cuero, Texas   779 5';              under article 42.12, Code of
        Telex    9101874-1367
        Telecopier      5121475.0266
                                                                                   Criminal Procedure

                                               Dear Mr. Cheatham:
        714 Jackson,  Suite 700
        Dallas, TX. 75202-4506
                                                    You have asked the following questions regarding the duties,
        2141742-8944
                                               responsibilities, md    limitations of authority of the district
                                               attorney (or other state prosecutor), district judge, and probation
        4824 Alberta Ave.,  Suite
                                160            officer under section 8(a) of article 42.12 of the Code of Criminal
        El Paso. TX. 79905.2793                Procedure concerni,: the revocation of probation:
        915/533-3484

                                                           1.  D~ZS the fact that a probation revocation
P
          101 Texas.    Suite 700
                                                        hearing '7%~been held to be administrative, rather
        r,wston,     TX. 77002-3111                     than crj.minal in nature, change the duties and
        713/223-5886                                    responsi>tlities of the district attorney, or
                                                        other   state prosecutor, in      the   revocation
                                                        proceedil:s compared to the filing and trying of
        806 Broadway,        Wife    312
        Lubbock,     TX.    79401-3479
                                                        an ordinxcy criminal case?
        8061747~5238
                                                           2. C~, a district attorney file a petition in
                                                        district court to revdke a felony probation which
        4309 N. Tenth. Suite 6
                                                        was granted in one of the counties served by the
        McAllen.     TX. 78501-1685
        5121682.4547
                                                        district attorney, without the request of the
                                                        probation officer and/or the district judge, or is
                                                        the district attorney prohibited fron filing a
        200 Main Plaza, Suite 400                       petition to revoke a felony probation unless
        San Antonio,  TX. 782052797
                                                        requested to do so by the probation officer and/or
        5121225-4191
                                                        the distrtct judge?

         An Equal      Opportunity/                        3. If the probation officer obtains the
         Affirmative     Action     Employer            written s?proval or order of the district judge to
                                                        file a motion to revoke the probation of a felony
                                                        probationar, is the district attorney required to
                                                        file a motion to revoke regardless of the lack of
                                                        merits or lack of admissible legal evidence
                                                        available to revoke, or does the district attorney
                                                        have the authority to screen the requests to file
    P                                                   motions t3 revoke probations and to refuse to file
                                                        a motion to revoke when he feels that there is a
                                                        lack of sufficient, legal, admissible evidence



                                                                         p. 847
Honorable Wiley L. Cheatham - Page 2   (JM-194)




          submitted to him by the probation officer on which
          to prove the allt!f;ed violations, as required by
          the appellate courts?

            4. If the dt.strict judge goes over the
         evidence and facts of the case in detail with the
         probation officer prior to ordering that a
         petition to revoke be filed and not in open court
         with attorneys for both sides present, is the
         judge then disqxlified to hear the revocation
         proceedings?

             5. After a petition to revoke a probation has
          been filed, can a judge refuse or decline to hear
          the petition to revoke?

            6. After a petition to revoke a probation has
         been filed, can a judge dismiss the petition to
         revoke without a hEsring, when the state is ready
         for the hearing xd requests that a hearing be
         conducted?

            7. (A) After 3 petition to revoke a probation
         has been filed by the prosecutor, can the judge
         transfer the hearing to another district for
         another prosecutor' to handle, without a hearing
         and without the :Ipproval of the prosecutor who
         filed the motion w revoke and without showing
         good cause? (B) Can a judge not only transfer a
         petition to revok{! as above set forth, but also
         combine the petitirl to revoke with other cases in
         other districts. al.1 consider all cases together
         without the consent of the state prosecutor?

             8. (A) If a judge calls a probationer into
          court and informalL:rdiscusses alleged violations,
          without a hearing and not in the presence of the
          prosecutor and/or Jefense counsel, is the judge
          disqualified to he.1.r
                               a petition to revoke filed by
          the state concernl.rgviolations discussed by the
          judge   and   probe,tioner?   (B) If   the judge
          discusses   the   .i,lleged violation   with   the
          probationer, can the judge then refuse to hear a
          petition to revcke filed by the prosecutor
          covering the viola.::lons
                                  discussed?

The subject statute reads in part as follows:

             Sec. 8. (a) At any time during the period of
          probation the co11::tmy  issue a warrant for
          violation of any of the conditions of the


                                   p. 848
Honorable Wiley L. Cheatham -’Page 3     (JM-194)




          probation and cau;,:the defendant to be arrested.
          Any probation officer, police officer or other
          officer with poser of arrest may arrest such
          defendant without ~1warrant upon the order of the
          judge of such court to be noted on the docket of
          the court. A probationer so arrested may be
          detained in the ccluntyjail. or other appropriate
          place of detenticr until he can be taken before
          the court. Such officer shall forthwith report
          such arrest and c.rtentionto such court. If the
          defendant has not heen released on bail, on motion
          by the defendant the court shall cause the
          defendant to be ‘>cought before it for a hearing
          within 20 days of :iilingof said motion, and after
          a hearing without a jury, may either continue,
          modify, or revokt! the probation. The state may
          amend the motion to revoke probation any time up
          to seven days beFore the date of the revocation
          hearing, after wh:.ch time the motion may not be
          amended except ftr.rgood cause shown, and ins no
          event may the state amend the motion after the
          commencement of r;lkingevidence at the hearing.
          The court may cartinue the hearing for good cause
          shown by either t’ledefendant or the state. If
          probation is revoked, the court may proceed to
          dispose of the case as if there had been no
          probation, or iji it determines that the best
          interests of society and the probationer would be
          served by a shor:jzr term of imprisonment, reduce
           the term of impx,isonmentoriginally assessed to
          any term of imprisxnaent not less than the minimum
          prescribed for     the   offense   of  which   the
          probationer was convicted.

Code Grim. Proc. art. 42.1:!, This provision of the Adult Probation,
Parole, and Mandatory Supervision Law provides little guidance in
arriving at answers to your questions. We conclude, however, that the
functions of the district .lttorney and district judge in probation
revocation matters are generally comparable to their respective roles
in other similar facets of criminal proceedings.

     In its most recent ‘zcposition of the nature of a probation
revocation proceeding in ---
                          RJadas v. State, 586 S.W.2d 520, 523 (Tex.
1979), the Texas Court of Criminal Appeals stated as follows:

             In Davenport v’. State, 574 S.W.Zd 73 (Tex. Cr.
          App. 1978), we heid:

                ‘At a revoc:z.tion
                                 of probation proceeding, a
             defendant neei not be afforded the full range
             of constitutional and statutory protections



                                       p. 849
Honorable wiley L. cheatham '-Page 4   (JM-194)




            available at a criminal trial.       Gagnon v.
            Scarpelli, 411 lJ.S. 778, 93 S.Ct. 1756, 36
            L.Ed.Zd 656 (1973). At such a proceeding,
            guilt or inno~xnce is not at issue, and the
            trial court is not concerned with determining
            the defendant's original criminal culpability.
            "The question at a revocation hearing is
            whether the a?:xllant broke the contract he
            made with the court after the determination of
            his guilt." Kf:.'~ly
                               v. State, Tex. Cr. App., 483
            S.W.2d 467, 4%g. Also of significance is the
            fact that ". . . the result of such a hearing
            to revoke is n3t a conviction but a finding
            upon which the trial court might exercise its
            discretion    by    revoking   or    continuing
            probation." H:.:.lV. State, Tex. Cr. App., 480
            S.W.2d 200. GGrt. denied, 409 U.S. 1078, 93
            S.Ct. 694, 34?,Ed.2d 667 (emphasis added). "A
            probation revccation hearing is not . . . a
            criminal prose,:ution." Hill v. State, supra.
            It has been dcgrominatedas "administrative in
            nature." ---
                      Hill F. State, supra.'

             This is not to say, however, that all
          constitutional guarantees of due process fly out
          the window at a probation revocation hearing. A
          probationer is entitled to certain due process
          protections   in   the    revocation proceedings.
          Eradley v. State, 564 S.W.2d 727 (Tex. Cr. App.
          1978); Whisenant Y. State, 557 S.W.2d 102 (Tex.
          Cr. App. 1977). ?n Gagnon v. Scarpelli, a,
          the   Supreme Colrt     enunciated the    'minimum
          requirements of glue process' which must be
          observed in probation revocation hearings. They
          include: written notice of the claimed violations
          of probation, disclosure to the probationer of the
          evidence against l~im, the opportunity to be heard
          in Person and to present witnesses, the right to
          confront and cross-examine adverse witnesses, a
          'neutral and detached' hearing body, and a written
          statement bv the E,uztfinders as to the evidence
          relied on and the ::easonsfor revoking probation.
          See also Morrissey V. Brewer, 408 U.S. 471, 92
          S.Ct. 2593, 33 L.Ed.2d 484 (1972).

             In Wbisenant v.--State, supra, we observed that
          the procedure for revoking probation in this State
          affords a probaticrer far greater safeguards than
          those required by _(:agnonY. Scarpelli, D,     and
          Morrissey V. Bre*er, supra.         We stated in
          Whisenant   that -7The     proceeding  to   revoke



                                p. 850
Honorable Wiley L. Cheatham - Page 5 (JM-194)




         probation, although not the same as a criminal
         trial, requires substantially all the same
         procedure . . . . An adversary proceeding is
         afforded the probationer in which almost all of
         the rules of evii,cnceand criminal procedure are
         applicable . . . .' 557 S.W.2d at 105.

Compare Fariss v. Tipps, 463 S.W.2d 176, 179 (Tex. 1971). Hill v.
State, a,      held that a probation revocation hearing is not "an
adversarial proceeding, a ~::Lvil
                                action, or a criminal.prosecution."
480 S.W.2d at 202.

     Recent cases such as ---
                          Ruedas and Whisenant, supra, establish that
a probation revocation heartzIg&x adversarial in nature. Moreover, a
careful reading of the cou.:,:'spronouncement in Ruedas leads to the
conclusi~on that earlier stx:ements regarding a probation revocation
hearing being an administ~~c.tive  proceeding rather than a criminal
prosecution have been largely eroded. These statements are merely
another way of saying that such a hearing is not a part of the
determination of a defendant's original criminal culpability and
consequently does not entit:.#!
                              a defendant to the full range of federal
due process protection required for criminal defendants prior to a
determination of guilt. LL:ce"ise, the Ruedas exposition also notes
that while Morrissey, =I&,      and Scarpelli, s,        mandate only
specified "minimum requirena~ntsof due process," Texas law requires
that far greater safeguxds,       amounting to virtually the same
procedural protections avai:lzlble
                                 at a criminal trial, be afforded in a
probation revocation hearin:. See, e.g., Ex parte Guzman, 551 S.W.2d
387 (Tex. Grim. App. 1977) (a probationer has the right to be
represented by counsel at a Jxobation revocation hearing).

     Regarding your first th::eequestions, we refer to article 2.01 of
the Code of Criminal Procedxe, which requires that:

          Each district attcrney shall represent the State
          in all criminal usea in the district courts of
          his district and :.n appeals therefrom, except in
          cases where he YLIS been, before his election,
          employed adversel:r. . . . It shall be the primary
          duty of all pro:rlxuting attorneys . . . not to
          convict, but to sszt%
                              that justice is done.

See also Tex. Const. art. V, §21. While section 8(a) of article 42.12
does not explicitly speak. to the filing of a motion to revoke
probation, it does refer tcs"[tlhe state" amending such a motion and
case law applying article 2.01 implicitly recognizes that the
appropriate agent of the st,s:efor filing probation revocation motions
is the district attorney (or other state prosecutor). See uparte
Morgan, 616 S.W.2d 625 (Tex. Crim. App. 1981) and Ex pa&-Spain,589
S.W.2d 132 (Tex. Grim. App. 1979). Indeed, in Taylor V. State, No.
12-83-0126-CR, Tex. App. - Tyler, March 29, 1984 (unreported), the



                              p. 851
Honorable Wiley L. Cheatham ..Page 6    (JM-194)


                                                                         .-



Tyler court of appeals reczently explicitly held that a revocation
proceeding falls within the smbit of both article 2.01, V.T.C.S., and
article V, section 21 of the Texas Constitution, thus requiring the
state's interests to be represented by the appropriate state
prosecutor.

     Thus, we answer your first three questions as follows: (1) the
duties and responsibilities of the state prosecutor in probation
revocation proceedings are comparable to those of such prosecutor in
the main criminal prosecutjcn; (2) when in his prosecutory judgment
the circumstances are appropriate, a district attorney may file a
motion to revoke a felonlr probation without the request of the
probation officer or district judge; and (3) a district attorney is
not required to file a motic#rto revoke sought by a probation officer,
if there is a lack of merit or the existence of any legal defect, but
rather a district attorney cihouldexercise appropriate prosecutorial
discretion as in an original criminal prosecution. Indeed, article
2.01 as auoted above directs the orosecutor to do iustice above all.
Compare Model Code of Pxsfessibnal Responsibility, Canon 7 and
especially DR 7-103(A).

     Regarding questions four and eight, the circumstances posited
would not be the basis for i: disqualification, because the exclusive
grounds for disqualifying a judge from sitting in a criminal case are
very narrowly drawn in article V. section 11 of the Texas Constitution
and article 30.01 of the Code of Criminal Procedure. Ex parte
Largent. 162 S.W.2d 419 (Tex. Grim. App. 1942). cert. denied, 317 U.S.
668 (1942). Until very recently, it was

          well established zhat the bias or prejudice of a
          trial judge not based upon interest Is not a legal
          disqualification. Aldridge V. State, 170 Tex. Cr.
          R. 502, 342 S.W.2diO4 (1961); Vera V. State, 547
          S.W.2d 283 (Tex. ,:r. App. 1977). However, any
          indication of prejudice or opinion of guilt on the
          Dart of the trial iudee reauires close scrutiny of
          his rulings on ap&al-. Aidridge V. State, &;
          Vera V. State, supra. But the judge's bias, if
          any, standing alone, does not constitute error.
          Of- course, a defendant co"lc? challenge an
          erroneous ruling r.xtherthan the prejudice which
          would nive the dr,fendant the rizbt to complain.
          Boldin; V. State, 493 S.W.2d 18: (Tex. Cr: App.
          1973); Vera v. State. supra.

Zima V. State, 553 S.W.Zd 378, 380 (Tex. Grim. App. 1977). In
McClenon v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983), however, the
Court of Criminal Appeals held that bias which "is shown to be of such
a nature and to s"& an extz:~tas to deny a defendant due process of
law" would be a basis for disqualification. Moreover, Morrissey,
SUE,    at 489, and Scarpel.11.
                            --   B,      at 786, make clear that "a



                                       p. 852
Honorable Wiley I..Cheatham - Page 7   (JM-194)




'neutral and detached' he;lr,ingbody" is necessary to satisfy the
minimum requirements of due process.

     Thus, we believe that a judge who either "goes over the
facts . . . and evidence .    . with the probation officer prior to
ordering that a petition to revoke be filed . . ." beyond what IS
necessary as a basis for losuing a warrant, or "informally discusses
alleged violations with pr,‘)ationer. . . [outside] the presence of
the prosecutor and/or defer.$ecounsel . . ." could put his status as
"neutral and detached" in jeopardy. A recent, very cogent analysis of
the constitutional impropriety of an official functioning as both
prosecutor and judge in the same case emphasizes the necessity of "the
appearance of impartiality constitutionally required by a judge."
Giles V. City of Prattvills:,556 F.Supp. 612 (M.D. Ala. 1983). See
also Chitimacha Tribe of I>,uisiana V. Harry I.. Laws Co., 690 F.2d
1157, 1165 (5th Cir. 1982): The Giles court went on to quote the
United States Supreme Court in Marshall v. Jerrico, Inc., 446 U.S.
238, 242 (1980) as follows:

          The Due Process Clause entitles a person to an
          impartial and dislxterested tribunal in both civil
          and   criminal   :.tses. . . .    The   neutrality
          requirement helps TO guarantee that life, liberty,
          or property will r.otbe taken on the basis of an
          erroneous or distorted conception of the facts or
          the law . . . . ,Lt the same time, it preserves
          both the appearance and reality of fairness
          'generating the feeling, so important to a popular
          government, that justice has been done . . . ' by
          ensuring that no person will be deprived of his
          interests in the absence of a proceeding in which
          he may present his case with assurance that the
          arbiter is not predisposed to find against him.

Cf. Cooledge V. New Hampshi.re,403 U.S. 450 (1971). In Texas ex rel.
Bryan v. McDonald, 662 S.'z3d 5 (Tex. Grim. App. 1983), the court
found it improper for a crtdge to view a presentencin report of a
probation officer prior to a determination of guilt or innocence
because of Canon 3(A)(4) oi'the Code of Judicial Conduct regarding 5
parte communications conce:ming pending or impending proceedings.
Consequently, we conclude that, depending on the facts of the
particular case, a judge whc~ combined the prosecutorial function with
his decision-making funct,ion, as might occur in the situation
described in your questions four and eight, could violate the
constitutional mandate for a fair and impartial hearing tribunal. -See
Weng Yang Sung V. McGrath, 339 U.S. 33, 50 (1950).

     Questions five and six raise the issue of what sort of discretion
a judge has to dispose of a probation revocation petition without a
hearing. Section 1 of article 42.12 pT@VidSS  in part that


                                p. 853
Ikmorable Wley   L. Cheatham -.Page 8   (JM-194)




         It is the purpose ,f this Article to place wholly
         within    the   state   COUrtP    of   appropriate
         jurisdiction the -cespo"sibil~ityfor determini"g
         when the impositi,& of se"teuce in certain cases
         shall be suspended, the conditions of probatlnn,
         and the supervisicr of probationers, in consonance
         with the powers ae;igned to the judicial branch of
         this government 3'? the Constitution of Texas.
         (Emphasis added).

Since there is no provisic~r,to the contrary, and since the whole
thrust of this statute is to place the gover"a"ce of the probation
system within the discretior~of the judges of criminal courts, we are
satisfied that, absent an alsme of discretion, a district court judge
may dismiss a petition to revoke probation without a hearing, although
he could not, of course, at:::to revoke without a state prosecutor's
having filed a motion seeking such action. compare article 32.01 of
the Code of Criminal Procedure.

     Question seven implicates section five of articles 42.12 which
reads as follows in pertinent part:

             (a) Only the c:curtin which the defendant was
          tried may . . . alter conditions, revoke the
          probation, or disc:kargethe defendant, unless the
          court has transferI,edjurisdiction of the case to
          another court with-the latter's consent . . . .

             (h) After a defendant has been placed on
         probation, jurisc2ction of the case may be
         transferred to a court of the sane rank in this
         State having geog;aphical jurisdiction where the
         -~-
         defendaut is resii,fngor where a violation of the
         conditions of prcbation occurs. Upon transfer,
         the clerk of the court of original jurisdiction
         shall forward a transcript of such portions of the
         record as the transferring judge shall direct to
         the court accept:lug jurisdiction, which latter
         court shall thereafter proceed as if the trial and
         conviction had occurred in that court.

             (c) Any court having geographical jurisdiction
          where the defendant is residing or where a
          violation of the c,onditfons of probation occurs
          may issue a warl:i"t for his arrest, but the
          determination of action to be taken after arrz
          shall be only by t& court having jurisdiction of
          the case at the tiiz the action is taken.

These provisions, rather th,rl the venue provisions in chapter 31 of
the Code of Criminal P.rocedure, control probation revocation


                                    p. 854
Honorable Wiley I..Cheatham _'Page 9   (JM-194)




proceedings, since the specific prevails over the general. See 53
Tex. Jur.2d Statutes, 1186. Section 5(a) and (b) unequivocallyxate
that after a defendant has been placed on probation the court which
tried him may transfer his Ease to a coequal court which is located
either (1) where the probationer resides, or (2) where the alleged
violation of the conditionE of probation occurred, if the transferee
court consents. Subsection (c) states that either court may issue a
warrant for a probatione.c's arrest, but only the court having
jurisdiction of the case al, the time may act on the motion to revoke
probation. Section 5 contains no other restraints on the transfer of
cases wherein a defendant has been granted probation. Hence, we
believe that a judge has ehe authority to transfer such a case to
another district court wil:lloutthe approval of the prosecutor who
filed the motion to revoke. After such transfer, we believe the
transferee court would be able to join other cases with the probation
revocation matter without 1:l.econsent of the prosecuting attorney in
the transferee district, ttough such procedure is not recommended.
Moreno v. State, 587 S.W.2d ,105,412-413 (Tex. Grim. App. 1979).

                             SUMMARY

             The responsibilities of a district attorney in
          a probation revocstion hearing are essentially the
          same as those in a trial to determine criminal
          culpability. Fox, example, a district attorney's
          determination of whether to file a petit,ion to
          revoke probation nust be based on his own best
          prosecutory judgrlc!nt,not merely the request of
          the probation officer.

             If a district judge reviews the facts involved
          in an alleged prol~ationviolation matter with the
          probation officex,or the probationer outside the
          presence of the district attorney, the judge,
          though he is not: otherwise disqualified under
          state law, might under particular circumstances
          find it appropri;,teto decline to hear the matter
          at issue if he has compromised the impartiality
          demanded by the federal due process clause.

             Since the who:lc thrust of article 42.12 is to
          give governance cf the probation system to the
          district judge, te may decline to hear or may
          dismiss a probat!.onrevocation petition without a
          hearing.

             Under sectior. five of article 42.12,        the
          district jGdge is authorized to transfer        the
          hearing on a probation revocation motfon with   the
          consent of    the transferee judge, and         the



                                       p. 855
                                                                          .   .


Honorable Wiley L.   Cheatham   .   Page 10   (JM-195)




         transferee judge msy consolidate such transferred
         matter with other cases.




                                                      MA TT 0 X
                                              Attorney General of Texas

TOM GREEN
First Assistant Attorney Gerwral

DAVID R. KICHARDS
Excutive Assistant Attorne],General

Prepared by Colin Cari
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairmen
Jo" Bible
Gary Bledsoe
David Brooks
COli" Carl
Susan Garrison
Jim Ploellinger
Nancy Sutton




                                         p. 856
