I received an inquiry from an Ellis County probationer recently. The probationer had been sent notice to appear at an “Adiministrative Violation Hearing.” Allegedly this probationer had done or not done various thing in violation of the rules of probation.
Probationer told me that he was not allowed to have an attorney at this hearing. Probationer said if an attorney did appear then Probationer would be arrested. That didn’t sound right to me.
I told probationer that he did have the right to counsel. I also filed an Open Records request to confirm or deny this allegation.
THE RIGHT TO COUNSEL?
I am sad to report that this is true. The Ellis County Community Supervision department sent me their “Notice to Attend Administrative Violation Hearing.” This notice reads
“You may have attorney present, however, they will not be allowed to
participate in these proceedings. If you would like a hearing before the
Court so your attorney can speak for you, a motion to revoke your community
supervision, motion to proceed to adjudication of guilt, and violation
warrant will be obtained for you. Once in custody you will be able to
participate in a hearing before the Court. Come to this administrative hearing prepared to answer truthfully about your violations….”
Get that. You can have a lawyer, but he can’t participate. Also, come ready to confess.If you want your lawyer to participate then we will revoke your probation and arrest you. You can then wait in jail for your hearing. Probation violaters routinely have very high bail, if any is set.
WHAT ARE PROBATIONER’S RIGHTS?
A probationer enjoys the right to counsel at a Probation Revocation hearing. A person who has been convicted of a crime, is in prison or on probation still has a right against self-incrimination concerning statements that would incriminate him for some other offense.
Often times, probationers are charged with committing a new criminal offense. If the right against self incrimination and right to counsel have any meaning it should be to protect those accused of new offenses, even if they are on probation or at an “Adminstrative Hearing.”
It appears that these “Administrative Violation Hearings” are used as intermediate step before a revocation hearing. That is not an uncommon practice. Many counties have dockets to address probationer’s non compliance. However, Administrative Hearings should not be an end-run around the right to counsel.
TOO MANY PROBATIONERS
When I was a prosecutor I dealt with many pain in the a** non compliant probationers. Probation officers have a tough stressful job. It is not easy to rehabilitate drug addicts and career criminals. The answer is not to deny constitutional protections.
We have too many people on probation for consensual crime. If we only put real criminals on probation, we would have the resources to monitor, rehabilitate, and/or revoke them all.