A "Shocking" Ruling

In Texas, there are certain types of offenses for which a trial judge may not order community supervision (i.e. Probation). See Tex. Code Crim. Proc. 42.12 § 3g. A jury, on the other hand, in those same cases, may recommend to the judge that community supervision be ordered and the law provides that the judge shall so order it.

Section 6 of Article 42.12 also provides the judge with another probation option – Shock Probation. Shock Probation allows a defendant to be released early from a confinement sentence and placed back on regular probation if:

(1) the defendant is otherwise eligible for community supervision under this article; and
(2) the defendant had never before been incarcerated in a penitentiary serving a sentence for a felony.

BUT…does section (1) mean that the defendant is eligible for Shock Probation if he is eligible for ANY community supervision under 42.12, including jury recommended (i.e. when the judge cannot do it himself) or must be eligible for the more restrictive JUDGE-ORDERED community supervision?

I’ll admit that I was confused when I saw this question posed in the recent CCA case – State v. Posey. In Posey, the State was appealing a decision of the 6th District Court of Appeals (Texarkana) holding that the trial judge can impose Shock Probation in any case in which the defendant is eligible for ANY type of probation under Article 42.12. The State was of the mind that the defendant must have initially been eligible for Judge-Ordered community supervision to later be eligible for Shock Probation.

Posey was convicted of two criminally negligent homicides. Because the jury made a deadly-weapon finding, the judge was unable to order community supervision without a jury recommendation for such. The jury recommended community supervision and the judge ordered it. Later, Posey violated the terms of his community supervision and the State moved to revoke his probation. After Posey had begun serving his resulting confinement sentence, he filed a Motion to Impose Community Supervision and the judge granted Shock Probation. Posey was released from jail and placed back on probation.

The State appealed the issue to the CCA.  Noting an ambiguity in Article 42.12, the Court of Criminal Appeals donned their legislative hats and signed a new bill into law. Here’s the new rule with regard to Shock Probation under section 6 of 42.12:

A trial judge may not grant shock probation unless the defendant is eligible for judge-ordered community supervision.

In so holding, the CCA cleaned up a gap in the law and, in my opinion, interpreted section 6 consistently with section 3. If a trial judge cannot order community supervision without a jury recommendation, then he should not also be able to order shock probation. Good holding, but, of course, you would always prefer that a legislature be the body handing down the law.

Judge Keasler concurred and is of the opinion that the deadly weapon finding precluded the Defendant from being placed on Shock Probation.