Who controlled filing, dismissal, impartiality, and transfer decisions in a Texas felony-probation revocation case?

Texas AG Opinion JM-194: Probation Revocation Roles

Plain-English summary

JM-194 concluded that a district attorney's responsibilities in probation revocation were essentially the same as in a proceeding to determine criminal culpability. The prosecutor had to exercise independent judgment about whether evidence and law supported filing.

"The responsibilities of a district attorney in a probation revocation hearing are essentially the same as those in a trial to determine criminal culpability."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

"A district attorney's determination of whether to file a petition to revoke probation must be based on his own best prosecutory judgment, not merely the request of the probation officer."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

A judge could dismiss a revocation petition without a hearing, but the court could not revoke probation unless a state prosecutor had filed a motion seeking revocation.

"Absent an abuse of discretion, a district court judge may dismiss a petition to revoke probation without a hearing, although he could not, of course, act to revoke without a state prosecutor's having filed a motion seeking such action."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

The opinion warned that a judge's private, substantive discussion of alleged violations with a probation officer or probationer could jeopardize the judge's neutral and detached status. Whether the judge should step aside depended on the facts and whether impartiality had been compromised.

"A judge who combined the prosecutorial function with his decision-making function ... could violate the constitutional mandate for a fair and impartial hearing tribunal."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

JM-194 also concluded that article 42.12 permitted transfer to a qualifying coequal court with that court's consent, without the filing prosecutor's approval, and allowed the receiving court to consolidate the transferred matter with other cases.

"The district judge is authorized to transfer the hearing on a probation revocation motion with the consent of the transferee judge, and the transferee judge may consolidate such transferred matter with other cases."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the district attorney file without a request from the probation officer or judge?

Yes. JM-194 said the prosecutor could file when prosecutorial judgment supported it.

"When in his prosecutory judgment the circumstances are appropriate, a district attorney may file a motion to revoke a felony probation without the request of the probation officer or district judge."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Did the district attorney have to file whenever the probation officer and judge requested it?

No. The prosecutor could refuse when the request lacked merit, legally admissible proof, or was otherwise defective.

"A district attorney is not required to file a motion to 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 should exercise appropriate prosecutorial discretion as in an original criminal prosecution."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Was probation revocation merely an informal administrative matter?

The opinion recognized older language calling revocation administrative but concluded that Texas procedure was adversarial and supplied almost all the evidentiary and criminal-procedure protections used at trial.

"The proceeding to revoke probation, although not the same as a criminal trial, requires substantially all the same procedure."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Did a judge's advance discussion of evidence automatically disqualify the judge?

Not automatically under the narrow state-law grounds described. But the facts could show bias serious enough to deny due process or could compromise the neutral and detached tribunal required for revocation.

"The circumstances posited would not be the basis for a disqualification, because the exclusive grounds for disqualifying a judge from sitting in a criminal case are very narrowly drawn."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

"A 'neutral and detached' hearing body is necessary to satisfy the minimum requirements of due process."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Could a judge decline to hear or dismiss the motion without a hearing?

Yes, absent abuse of discretion. JM-194 tied that authority to article 42.12's placement of probation governance in the criminal courts.

"Since the whole thrust of article 42.12 is to give governance of the probation system to the district judge, he may decline to hear or may dismiss a probation revocation petition without a hearing."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

What courts could receive a transferred probation case?

The opinion read article 42.12 to allow a transfer to a court of the same rank with geographic jurisdiction where the probationer lived or where the alleged violation occurred, if the receiving court consented.

"The court which tried him may transfer his case to a coequal court which is located either (1) where the probationer resides, or (2) where the alleged violation of the conditions of probation occurred, if the transferee court consents."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Background and statutory framework

The request presented eight groups of questions about prosecutors, judges, probation officers, hearings, ex parte discussions, dismissal, and transfer under section 8(a) of article 42.12.

"You have asked the following questions regarding the duties, responsibilities, and limitations of authority of the district attorney (or other state prosecutor), district judge, and probation officer under section 8(a) of article 42.12 of the Code of Criminal Procedure concerning the revocation of probation."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Article 2.01 made the district attorney the state's representative in district-court criminal cases and stated that the prosecutor's primary duty was to see that justice was done.

"It shall be the primary duty of all prosecuting attorneys ... not to convict, but to see that justice is done."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Article 42.12 placed responsibility for suspension of sentence, probation conditions, and probation supervision within the state courts of proper jurisdiction.

"It is the purpose of this Article to place wholly within the state courts of appropriate jurisdiction the responsibility for determining when the imposition of sentence in certain cases shall be suspended, the conditions of probation, and the supervision of probationers."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Citations and references

• Article 42.12 supplied the revocation, dismissal, hearing, and transfer framework analyzed in JM-194.

"The court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, modify, or revoke the probation."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

• Article 2.01 and article V, section 21 identified the prosecutor as the state's representative in the proceeding.

"A revocation proceeding falls within the ambit 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0194
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0194.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

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 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 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 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 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 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
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 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 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 . .

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