Tuesday, June 5, 2007

Judgement Liens for All Outstanding Probation Fees/Restitution

According to Texas Criminal Procedure-Code and Rules, Article 42.22, Sec. 2-12, http://www.government.texasonline.state.tx.us, Offenders can be accountable for their crimes by making the offender pay a restitution lien for both the victim and the courts to cover the administrative costs. As of now, many defendants don’t pay up. The inability to pay based on low income, debt, or family/child support, has been the quick and easy defense for most lawyers. However, according to the 79th Session of the Texas Legislature, judges do no have to consider when determining restitution. A criminal who commits a crime should be held accountable and required to make restitution. Restitution in Texas, A Report to the Legislators, authored by the staff at Sam Houston State University, “50% of restitution ordered is collected.” In other words and the bigger picture, the other 50% is lost in the judicial halls of apathy. The report goes on to state:

“[C]ollecting restitution payments compete with the collection of other fees, including fines, court fees, and supervision fees. Some of these fees are used to supplement the budgets of the respective departments and officers’ salaries. The average community supervision order contains 18 conditions, which strains the ability to efficiently supervise restitution payment. --Office of Victims of Crime (1999) Promising victim-related practices and strategies in probation and parole. Washington D.C.: U.S. Department of Justice.
We need to take a step further and free up the courts by not having the thousands of technical violations at the end of sentencing. *******Texas has underused or not used at all its own rules about collecting monies and restitution for victims. Many if not all Texas Judges and District Attorneys have dropped the ball in the Restorative Justice policy by not repairing the damage between the victim and the offender.

This forgotten or ignored 42.22 code could bring in millions of dollars over the next decade returning funds back into the county and state coffers and most importantly, make the offender accountable for his or her crime. This can supplement bed space for violators of probation, violent and sex offenders. What appears to be the only important issue with the legislators and counties is to empty jails and prisons and leaving our citizens plagued with violence on the streets. The costs of beds are soaring through the roof and drain our counties of funds that could pay salaries, build better infrastructure, or provide resources for a better quality of life. This is a solution. The current lack of judicial oversight and negligence by the courts to reach across the code and change the current trend shows the lack of courage by the many who are responsible for a balance judicial system. The need to aggressively change to a “criminal accountability system instead of a treatment based system is critical as bed space becomes more and more important in locking up those violent and sex offenders.

As of now, the only buzz word around Austin is treatment which private attorneys have obvious reasons to support. The Big Treatment Lobbyist seems to work overtime peddling goods. It is a feel good policy. However, it is not all about treatment. It needs to be about accountability and protection of the public. Crimes cost millions of dollars to the citizens of Texas. We should not give lawyers and defendants more loopholes to avoid accountability.

Consequently, as of this date, near-sighted judges and legislators fail to realize the unused code could bring accountability and ownership of the crime to the offender. Restitution liens on all outstanding monies owed to the victims along with court costs and administration fees will eventually pay for a great number of bed spaces for those who fail to abide by the conditions of probation and keep violent and recidivist type criminals behind bars.
By judgment liens, this will in turn significantly reduce the number of technical violations for failure to pay monies. Judges could automatically convert any outstanding debt owed at the beginning of supervision to a judgment lien for all outstanding costs at the end of supervision.

This will free the court and the jails of the revolving door justice of violations, bonds, hearings, and dismissals. A simple statement ordering any outstanding balance at the end of supervision will be automatically converted to a judgment lien. This is the only solution for many victims and county jurisdictions to recover restitution and costs. Once the affidavit is filed by the District Attorney’s office, the affidavit will perfect the restitution lien giving priority to the victim for any monies collected from tax refunds, settlements, or other awards given to the offender. Long after the offender’s probation terminates successfully or unsuccessfully, the victim can still be paid by this method. Maybe there will be a court in the future who will stumble onto this forgotten code. If your county is not using 42.22, maybe you can suggest it as you ask to raise probation officer salaries.

12 comments:

Gritsforbreakfast said...

I think part of the problem is so many fees are placed on offenders it's on its face unreasonable to expect most to pay, and restitution gets lumped into the mix. If offender fees weren't a baseline funding source for probation departments, I'll bet restitution collections would increase.

Also, an average 18 different probation restrictions (meaning half have more) is ridiculous for both offender and PO. Focusing supervision on the most critical factors to me makes more sense.

Finally, IMO the best way to protect the community is to prevent recidivism, not maximize punishment. Maybe we'll chat more about this theme after future posts.

Glad to see the blog up - keep em coming. best,

Bryan Shreve said...

I agree Texas has a confused and troublesome way of funding probation departments. However, offenders, AKA criminals, need to be accountable. The best way is through their wallets and sanctions when they don't obey rules. Historically speaking, look at what DWI offenders go through with court costs, etc. This discourages a lot of folks from driving drunk, although Texas has an huge DWI offender population. That is another debate for another time. If it is costly enough, hopefully a few more offenders will think twice before breaking the law. We need to switch back to offender accountability and use treatment as a tool not as a crutch to get out of the jail sanctions. Jails are full because of so many reasons and one reason is people are not discouraged to break the law. Rewriting probation rules can be a start, but let us not take our eye of the ball.

Anonymous said...

As long as Judges have the authority to hire the Probation Chief their will be problems. Being AT-WILL makes all officers subject to the whims of the black robed primadonnas! The CSCD should be free to do the business needed to supervise and correct those that have been placed on probation. Some judges in Bexar County just don't care, as evidenced by officers having to submit numerous violation reports to get the attention of a particular judge. Since when does a judge have the option of deciding when a Motion to Revoke probation is to be filed or not? I believe the LAW states that it is up to the District Attorney's office. Offenders who commit additional crimes while on probation should receive swift punishment as a result of the violation. This is the only way to break the cycle of recividism. Yes, counseling and treatment are necessary parts of the overall plan. But, if the probationer doesn't cooperate, the publics safety becomes more important! Judges only care about being part of the MILLION DOLLAR CLUB! Court Costs are their priority!

Bryan Shreve said...
This comment has been removed by the author.
Bryan Shreve said...

Judges could positively effect change in their county. The issues have surfaced that many judges seem to fade into the shadows fearing additional work and lack the will of real oversight, overcrowding jails, funds coming in from offenders to finance the judicial budgets, and believing treatment is the "Panacea" for all evils. The stronger issue that most attorneys tend to ignore is the victims include us, the community and taxpayers, having to pay the bills of these offenders. I understand the county jail administrators could be fined by the federal government for being overcrowded, and judges feel the need to save lost souls, and statistics prove that rehabilitation works on substance abusers. However, the courts tend to forget that all felony and misdemeanors cases are not all substance abuse offenses. Bexar County could be the best test case in Texas. The population is diverse and our approach needs to be as diverse. Treatment is part of the solution, as stated many times before. What we miss is the swift sanctions for non-compliance, taking each condition as the Bible, and hold offenders to the rules. It is not difficult. Violent crimes will always be here as long as long as a weak judicial system and a community allows it. There are some judges in each district or counties that do get it and show a no-nonsense approach to violators and violent offenders. These are the ones who realize the community deserves the ability to walk in and through each neighborhood without fear of retaliation or harm.

The bottom line is IMO we are at the will of our and judges and district attorneys, Both can either keep justice balanced or carry the cross to save the offenders from their own plight. MTS' and VRs' motion to revoke probation, or violation reports to the DA's office, are simply forms either party can control. My worry is what happens to the intent of the law when it is ignored to make money, keep bed spaces low, or actively legislate from the bench. Thereby ignoring our own laws and codes intended to protect the public.

Thanks for the comments. Let us use this site as a "think tank," and hopefully generate new and fresh views from all of Texas.

Keep the faith

Anonymous said...

I think that we need to hold people accountable for their actions and not all actions are worthy of jail time. However the problem is a much bigger dog. There is no proven cure all for crime and substance abuse. I feel like I can make a difference with the first time offenders but most defendants have no business being on probation with some of their records. We are playing games thinking they will adhere to the rules of probation when they continue to break the law over and over. I know at work I feel like I shuffle paper all day for pennies. My case load has gone down recently and I'm starting to see where I can really spend the time with my defendants to understand their needs and try and get them on the right track. If we can get the right officers in the field and focus our time on defendants who really want to change, then I think we have a break through.

GFB is right on the funding! Kinda feels like defendant pays us and if the defendant does not pay us then we pay for the defendant to do time. Does not make since and the victim is lost in the shuffle.
Some of the plea bargains just are stupid! Like $20,000 in rest. for a two year probation for a defendant on SSI? Why not just have us do the impossible! The judges could care less about us or the victims. IMO they focus on which attorney is in front of them and how it benefits their next campaign.

Bottom line is pay officers better and get people who want to work in the field. I've watched our brightest and most talented officers leave and go to jobs that pay fair. We need people who plan to stay and make a difference and feel they have value and want to work hard in the community. These defendants need that competency to succeed. If not, all is lost for the defendant,officer,victim and community. SS

Bryan Shreve said...

Well put SS. The old saying follow the money comes to mind. Most judges and lawyers tend to do what is the most convenient to them and rush an offender through the system. Lawyers want the "pay off" by their clients, and judges understand the rules since they themselves are graduated lawyers. It is not a pretty system. A great deal of cases are shuffled through in minutes leaving a lot of details left behind. Most of the time justice is a facade that paints a reassuring picture something is being done. The fine print is lost in the translation of the legal jargon. The victims, at least 1/2, don't see restitution, and it seems the offender is the spotlight and turns into a victim himself or herself deflecting blame and lawyers attmempting to mold the sentence to accomodate the client. Attorneys fail society by not addressing these very important issues, like the ability to pay, and what happens if the client does not pay restitution? Then what? normally, nothing but another dog and pony show at the end leaving the victim holding an empty bag.
I wonder if there are any attorneys who understand the entire scope of their duties.

Anonymous said...

I dont really think attornies really give a hoot as long as they thier money. judges dont care - they are attornies and they look out for each other. the attornies try to do things illeagal - they dont follow the code. they are teh ones with teh law degree - yet they are asking us what action to take. what a joke-if they refer to us as being consultants they should pay for that info. like anyone else.

Anonymous said...

Recently, a judge sitting on the bench terminated a probationer who was appearing before the bench on his fourth MTR, included was a new criminal charge. Think this long time judge cares about the community. This will come out during the next election for this judge, you can count on it. It will help sink their campaign along with other open record/public information that has been kept due to the judges' care less attitude. Remember, we are charged with protecting the publics safety!

Bryan Shreve said...

This is reality. I believe judges sometimes set their own personal agenda regardless of what code and guidelines are established. Granted, not all offenders are alike and not all crime has a violent impact on the community. However, as you are aware, some judges tend to ignore the most important task they have, and that is to (after the determination of guilt) assure the punishment phase is commensurate with the crime committed. This goes back to the original topic about making offenders acocuntable and closing the loophole of non-payment. Judgment liens will make the offender pay now or pay later, but it will sure make him or her pay.

Anonymous said...

What about all the classes that a probationer has to take that has nothing to do with the crime commited? You have a theft crime but they make you take a parenting class, or a drug class? Could someone please explain that to me

TCPCD said...

Dear Anonymous,

I agree with you, and no surprise to anyone, the courts sometimes fail to create a purpose driven supervision plan. Once an effective plan or orders are in place, the plan and supervising officer can address specific areas where sanctions are needed and treatment offered to prevent relapse or future criminal activity.

This being said, which is a bunch of stuff to consider, sometimes judges get behind in their dockets, and lawyers on both sides of the isle are rush to move a docket forward. Consequently, the defendant or victim is left with less than satisfactory outcome via plea agreement(s).

The bottom line is proper staffing of the case and full disclosure of circumstances of the arrest can be critical in determining sanctions and programs. The recommendation given by the pre-sentence investigation officer should be paramount to the court and should use this investigation to refer defendant(s) to programs.

If there are disagreements, the lawyer should have done the job and requested clarification at the time of sentencing. In addition, the courts are not privy to all the facts all the time and decide based on their experience and what is handed to them by the probation department, district attorney’ office, and other agencies involved in the crime. Thereby, as we sit and look at what just happened, sometimes we all scratch our heads.

Best of luck