Ellis County Probation- The Right to Counsel?

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.

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.

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.

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.

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4 responses to “Ellis County Probation- The Right to Counsel?”

  1. <img src="http://www.blogger.c says:

    I never knew how close we were to a police state. What ever happened to our induvidual rights and the constitution? First, the Austin police illegally spying on individuals. Now Ellis county denying rights. What is next?Dennis

  2. <img src="http://www.blogge says:

    This is different but it reminded me of “pre-sentence investigations” done by the probation office. Granted, sentencing is all but a done deal if you’re attending one in the first place. Still, answering questions which would incriminate me before I was sentenced – seemed like a very stupid thing to do.

  3. <img src="http://www.blogger.c says:

    I haven’t worked on probation violations in Texas, but it feels to me like there’s got to be a constitutional challenge in there if you can find a client who’s willing to do the time to let you file it. They can’t allow a certain type of hearing only to people whose lawyers shut up. But probation violations are such a tricky part of the law that due process often gets completely overlooked by the courts.

  4. <img src="http://www.blogge says:

    Thanks for the comments.Maggie,It is hard for any lawyer to challenge these practices because it may put your client at risk.It’s one thing to triumph on appeal, it’s better to not have to.I hope that exposing this practice will lead to change without anyone being sacrificed to the county jail.Catonya,PSI’s are common in Texas. You do not have to implicate yourself at these hearings. They are also routinely waived.Thanks for reading.RG

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