Texas Juries Can No Longer Recommend Community Supervision When Victim is Child Under 15, Elderly or Disabled
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
Community supervision, or probation as most people know it, has been defined by federal courts as an “imprisonment substitute” because the criminal sentence is not served in a penal institution. See: United States v. Elkins, 176 F.3d 1016, 1020 (7th Cir. 1999).
In the State of Texas community supervision is a privilege, not a right. See: Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1050 (1996). It is a punishment alternative that must either be agreed to between the state and defendant, ordered by a judge or recommended by a jury.
The Flores court specifically stated that “there is no fundamental right to receive probation [community supervision]; it is within the discretion of the trial court to determine whether an individual is entitled to probation.” Id.
In Texas, community supervision can be granted either by the trial judge or assessed by the jury. See: Tex. Code Crim. Proc. art. 42.12(3)(a); (4)(d).
While there is no fundamental right to community supervision, § 42.12(3)(a) requires that the judge impose community supervision “in the best interest of justice, the public, and the defendant” – all three of which are legitimate government purposes. Flores, 904 S.W.2d at 131.
Similarly, in federal court a district judge may depart from the U.S. Sentencing Guidelines’ prison recommendation and impose probation but only after he/she has considered all the sentencing factors listed in 18 U.S.C. § 3353. See: United States v. Toohey, 448 F.3d 542, 546-47 (2d Cir. 2006).
The discretion of the trial judge in Texas to grant, and the jury’s authority to assess, community supervision are likewise limited by statute. For example, Subsection 3g(a) of § 42.12(3) prohibits the trial judge from granting community supervision: (more…)
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