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The state must be diligent in its efforts to apprehend a defendant before his probationary period ends if a petition to revoke probation has been filed, the Texas Court of Criminal Appeals recently held, upholding a precedent set in 1963. “They stood by precedent that is defense-favorable,” says Robert Dawson, a University of Texas School of Law professor who specializes in criminal law. The 6-3 decision in Peacock v. State rejects suggestions by Presiding Judge Sharon Keller and former Court of Criminal Appeals Judge Steve Mansfield in prior concurring opinions that the due diligence defense should be eliminated because there is no statutory basis for it. Keller said in a 1999 concurring opinion to Connolly v. State that the defense appears to have been “created out of thin air” in the court’s 1963 decision in Stover v. State. In Stover, the Court of Criminal Appeals established the elements necessary for a trial court to have jurisdiction over a defendant arrested for revocation of probation after the probationary period is over. One of the elements required in Stover is that the state make a diligent effort to apprehend the defendant. No authority is required for that requirement, Keller said in a dissenting opinion in Peacock. But the majority in Peacock said in an opinion written by Judge Barbara Hervey that it does not find it “prudent” to overturn the precedential body of law from the Court of Criminal Appeals that has been followed by the various lower courts for almost 40 years. “The state is still required to prove due diligence by a preponderance of the evidence when the issue is raised by the probationer,” Hervey wrote in the May 29 opinion. Dawson says the Peacock decision is interesting because the court didn’t go with the growing minority view that the whole due diligence doctrine has no basis in law. Without the due diligence requirement, the state could “leisurely” revoke probation and not make any effort to serve process on the defendant when a revocation petition is filed, he says. “I was pleased with the court’s willingness to uphold the precedent,” says Gregg Hill, who represented James David Peacock at the revocation hearing and filed the petition for discretionary review considered by the Court of Criminal Appeals. Hill, a partner in Hillsboro, Texas’ Sims Moore Hill & Gannon, says the ruling means that the state must make an effort to find a probationer after a motion to revoke probation has been filed and a capias, or warrant, has been issued for his or her arrest. Entering the warrant into a computer and sending a letter to the individual’s last known address is not enough, he says. Peacock, who was given a two-year probated sentence on July 1, 1997, for felony bail jumping, was not arrested for alleged violations of his probation until 17 months after the warrant was issued and almost three months after his probationary period ended, the Court of Criminal Appeals majority opinion said. According to the opinion, the petition for revocation was filed after Peacock allegedly committed several violations of his probation, including testing positive for drug use, failing to report to his probation officer in person, and failing to find work. The 66th District Court in Hillsboro revoked Peacock’s probation on Oct. 22, 1999, and sentenced him to two years in prison. In a 2-1 decision, Waco, Texas’ 10th Court of Appeals upheld the trial court’s decision. Justice Tom Gray wrote the opinion, in which he was joined by Chief Justice Rex Davis; Justice Bill Vance dissented. LIMITED EFFORT State prosecuting attorney Matthew Paul says prosecutors have been trying to eliminate the due diligence defense because probationers facing revocation often are not apprehended until after a probationary period has ended. Arguments that there is no express statutory authority for the defense had been made in a number of cases based on Keller’s concurring opinion in Connolly, Paul says. Houston solo Brian Wice, who argued on Peacock’s behalf before the Court of Criminal Appeals, says he had the feeling that the due diligence defense was “on life support” when he walked into the court for arguments. Wice says the courts have used the word “absconder” like a “scarlet letter,” although many of the people given that label are not absconders. “They’re living where they’re supposed to be; they’re working where they’re supposed to be,” he says. Hill says the concern is that a probationer may have served the probationary term without knowing that a petition to revoke probation had been filed. The Court of Criminal Appeals majority opinion said a letter notifying Peacock of the revocation petition was sent to a post office box in Whitney, Texas, which was Peacock’s last known mailing address, and the warrant was entered into a statewide law enforcement computer. The opinion said the Hill County, Texas, Sheriff’s Department made no effort to investigate a Fort Worth, Texas, address where Peacock reported he was living or to call his mother, whom Peacock had listed as a contact with the probation office. “Requiring the state to show due diligence in executing the capias helps a court determine whether the probationer cannot be found because he is trying to elude capture or because no one is looking for him,” Hervey said in the opinion. Keller said in dissent that Peacock’s own conduct impeded the state’s efforts to contact him. Judges Mike Keasler and Paul Womack joined her in the dissent. Hill County District Attorney Dan Dent says he isn’t surprised that the Court of Criminal Appeals reversed the lower courts in Peacock because of the limited effort made to contact the defendant. Dent says he doesn’t believe the decision settles the due diligence issue and that the Court of Criminal Appeals might look at another case that presents better facts from the state’s standpoint. Paul, the state prosecuting attorney, says the majority opinion leaves open the question of whether the state could revoke the probation of an individual it can show is an absconder without exercising as much due diligence as it might have to find the individual.

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