Texas constitutional amendment prop. 9-pardons

[KRM45]

Jim, not to hijack your thread, but while I'm there I intend to vote against this one:

Proposition Number 4 (HJR 63)
HJR 63 would amend the constitution to authorize the legislature to permit a county to issue bonds or notes to finance the development or redevelopment of an unproductive, underdeveloped, or blighted area within the county, and to pledge increases in ad valorem tax revenues imposed on property in the area by the county for repayment of such bonds or notes. The amendment does not provide independent authority for increasing ad valorem tax rates.

Fort Worth used my tax money to pay Cabela's to build a store in the "blighted" Alliance Airport area.

Fort Worth is not a county... This has no effect on city authority to issue bonds...

[boba]

I'm casting my vote against junk mail. If a candidate sent me junk mail, I'm not voting for them. Same for groups pro/con propositions. It makes my choices easy this year.

[boba]

Jim, not to hijack your thread, but while I'm there I intend to vote against this one:

Proposition Number 4 (HJR 63)
HJR 63 would amend the constitution to authorize the legislature to permit a county to issue bonds or notes to finance the development or redevelopment of an unproductive, underdeveloped, or blighted area within the county, and to pledge increases in ad valorem tax revenues imposed on property in the area by the county for repayment of such bonds or notes. The amendment does not provide independent authority for increasing ad valorem tax rates.

Fort Worth used my tax money to pay Cabela's to build a store in the "blighted" Alliance Airport area.

Fort Worth is not a county... This has no effect on city authority to issue bonds...

No but it encourages counties to engage in corporate welfare, so Rex B on the right track.

[couzin]

I wholeheartedly agree, and would add that it should apply to ALL offenses...

Disagree - a deferred adjudication for a sex crime should never happen, but it does - and I am not supporting any type of automatic or otherwise erasing of that sort of crime.

[talltex]

I wholeheartedly agree, and would add that it should apply to ALL offenses...

Disagree - a deferred adjudication for a sex crime should never happen, but it does - and I am not supporting any type of automatic or otherwise erasing of that sort of crime.

I can understand your thinking on that issue...I've never dealt with it on a personal level, and it sounds like you might have. I don't believe deferred adjudication should just automatically be offered on ANY offense...it should be a tool available in the judicial process to try and achieve "justice". There's no reason to say probation MUST be offered for a forcible rape, child molestation, and so on...but what about an 18 year old high school senior getting caught having sex with his 17 year old girlfriend, whose parents insist on filing "statutory rape" charges against the boy? Or a couple engaged in sexual activity in the back seat of a car in a remote but public area being charged with "public lewdness"? That's a world away from holding a knife to someone's throat and committing rape...yet it carries a"sexual offender" registration requirement if convicted. Shouldn't the Judge have some discretionary leeway to avoid ruining their lives by forcing them to register as a "sex offender" everywhere they live for the rest of their life?

In the same manner, I am firmly against "zero tolerance" policies which make no provision for circumstances involved in a particular situation. Our school systems increasingly use such policies to avoid having to make a decision they think may cause them any controversy. There ARE differences in every case that should be taken into consideration...one size does not fit all. There was a case in the DFW area a few years ago where an "A" honor roll student, with no previous discipline issues, had been using his PU over the weekend to help move his grandmother, and on Monday morning someone walking by saw an ordinary silverware knife in the bed of the truck where it had fallen out of a box and reported it to a school administrator...they had a "zero tolerance policy"...the student was suspended and placed in alternative education classes, offsite for the rest of the semester for violation of the "no knife on school property" policy. School administrators point to their "zero tolerance policy statement" and say "it's out of our hands"...and avoid taking any heat from some other parent whose kid intentionally violated it with a "real knife" in his pocket who might accuse them of playing favorites. I just think there are alot of situations where insisting that everything has to be black or white, with no gray areas can prevent justice rather than achieve it. If a Judge and/or jury have considered all the evidence and the circumstances, and think that it truly warrants a "deferred adjudication" sentence, then I do believe that successful completion of the sentence should result in it being removed from the person's record.

[seamusTX]

..but what about an 18 year old high school senior getting caught having sex with his 17 year old girlfriend...

This kind of case generally would not be prosecutable now in Texas. There's a three-year margin of age that provides an affirmative defense for consensual sexual relations between a minor and adult (of opposite sexes).

An offense would have to involves something like an 18-year-old with a 14-year-old or a 21-year-old with a 17-year-old.

See Penal Code 22.011(e).

I think a lot of sexual prosecutions are brought under questionable circumstances, such as estranged lovers deciding after the fact that they had been raped, or divorcing parents charging one another with sexual offenses.

- Jim

[talltex]

..but what about an 18 year old high school senior getting caught having sex with his 17 year old girlfriend...

This kind of case generally would not be prosecutable now in Texas. There's a three-year margin of age that provides an affirmative defense for consensual sexual relations between a minor and adult (of opposite sexes).

An offense would have to involves something like an 18-year-old with a 14-year-old or a 21-year-old with a 17-year-old.

See Penal Code 22.011(e).

I think a lot of sexual prosecutions are brought under questionable circumstances, such as estranged lovers deciding after the fact that they had been raped, or divorcing parents charging one another with sexual offenses.

- Jim

Thanks for the clarification...I wasn't aware of the 3 year age spread now...was just thinking of how it used to be WAY back when it COULD have been an issue to me... but 21 and 17 ? I'd guess that is pretty common today... there are alot of girls who are sexually active at the age of 15/16 and younger. There's no question the two examples you mention occur regularly, and there is great potential for abuse of the system because any such charges MUST be taken very seriously, and in those cases, it results in a "guilty until proven innocent" situation for the accused spouse. I can't imagine the horror an innocent spouse would feel being put in that situation. As a long time business owner, I know that we all live in fear of a sexual harrassment charge. It's almost impossible to defend against, and regardless of the outcome, you are immediately and forever "tainted" by the allegation, because most people do take the view of "where there's smoke there's fire".

My point was that there ARE circumstances that may arise, where a judge or prosecutor knows that it would be a miscarriage of justice to convict someone of an offense with such drastic repercussions, but they ARE guilty of the offense legally...the 21yo/17yo having consensual sex...being able to offer deferred adjudication without a permanent conviction record is a way for the system to satisfy the law, while making allowance for the situation and showing compassion for the offender.

[seamusTX]

My point was that there ARE circumstances that may arise, where a judge or prosecutor knows that it would be a miscarriage of justice to convict someone of an offense with such drastic repercussions, but they ARE guilty of the offense legally...

I'm inclined to agree.

With felonies, and especially sexual offenses, we are talking about making the offender a second-class citizen for life. Their prospects are very limited, which leads offenders to drift into further criminality such as drug-dealing or theft because they have nothing to lose.

Deferred adjudication allows a person who has made one bad decision and then cleans up his act to go on with a normal life.

- Jim

[Charles L. Cotton]

Deferred adjudication is an optional tool for some but not all crimes. (I don't believe it's available for sexual assault any longer, but I may be wrong.) It is a tool that benefits both the state and the accused. If the state had to go to trial on every case, many defendants would see all charges dropped for violation of the Speedy Trial Act. It benefits the accused because they don't have to go to trial with an incompetent attorney because they can't afford a good one. This applies whether they committed the crime or not.

I didn't say deferred adjudication should be an option the defendant can elect anytime they wish. It's available if the prosecutor, defendant and the judge agree, and as I mentioned, it's not available for all crimes. I still contend that successful completion of the probationary period should result in automatic expungment, thus allowing the former defendant to legally say he was never arrested nor convicted of a crime. Deferred adjudication is pitched to a defendant as a way to avoid trial, the expense of a trial, that successful completion of the probationary period means everything will be dismissed, and that it won't affect them at all. That's not true and we should not let the judicial system continue to lie to citizens.

If a crime is so offensive that it doesn't warrant deferred adjudication, then add it to the list of crimes not eligible for deferred adjudication.

Chas.

[puma guy]

My point was that there ARE circumstances that may arise, where a judge or prosecutor knows that it would be a miscarriage of justice to convict someone of an offense with such drastic repercussions, but they ARE guilty of the offense legally...

I'm inclined to agree.

With felonies, and especially sexual offenses, we are talking about making the offender a second-class citizen for life. Their prospects are very limited, which leads offenders to drift into further criminality such as drug-dealing or theft because they have nothing to lose.

Deferred adjudication allows a person who has made one bad decision and then cleans up his act to go on with a normal life.

- Jim

Jim, I agree with you in part and your point is well taken, however, in Texas that will never happen and deferred adjudication doesn't really allow a person to go on with their normal life.
Sex offenders and bank robbers will never be forgiven by the system. You can murder here with relatively a light sentence, but don't mess with the money or commit any kind of sexually related crime. The restrictions on felons in Texas is so restrictive that employment is nearly impossible but for dead end minimum wage jobs and a lot of roofers! I never knew about the restrictions until someone pointed out that since Walmart sells alarms the law can be interpreted to exclude a felon from working there and the list goes on. Of course every one is responsible for their actions and should be cognizant of the consequesnces, but lawyers and the legal system mislead defendants into believing they'll have a clear record with deferred adjudication when in reality they'll basically be ineligible for any meaningful job afterward. That's why there are 750,000 people in Texas under lock and key and/or supervision of the TDCJD and BOPAP. In Texas if you are on parole for 5 years after serving say 10 years of a 20 year sentence and you violate parole, even a technical violation, you are required to go back for the full ten years remaining to finish out the original sentence. You get no credit while out on parole.

[saltydog452]

Having access to some saved up money is a factor in determining which direction the winds of justice blow.

I was arrested and all that goes with it. The District Attorney felt that the arresting officers case didn't hold water and there was no prosecution.

The Expunction Order to remove that arrest history from DPS records cost me 2,000 $ in fees. I'm told that similar things can happen when a disgruntled soon to be ex spouse makes an accusation of mistreating a child.

An accusation can carry the weight of a conviction. Maybe the power to pardon could help, but I don't see that as being available to all. Hopefully it wouldn't be another example of Justice Sold Here shopping.

salty

[talltex]

If a crime is so offensive that it doesn't warrant deferred adjudication, then add it to the list of crimes not eligible for deferred adjudication.

Chas.

My comment that I felt successful completion of a deferred adjudication sentence resulting in expungement should apply to ALL offenses, is what "couzin" was at odds with. I don't think there should be a category of offenses that it is completely off the table for, because that takes a valuable tool out of the hands of the Judge and prosecutor...let the circumstances dictate whether or not it's an option....not the penal code's legal description of an offense...and then allow the judge/prosecutor/jury to decide whether it is or is not appropiate in that particular circumstance.

I absolutely disagree with the concept of it being available to anyone just because its a first offense, or any other arbitrary requirement...just let the circumstances dictate whether or not it's an option. In a "horrific crime" case, simply don't offer it as an option. When you have a list of offenses where there is "no quarter given", you have made it black or white, with no gray area allowed, and anytime you draw a line in the sand, you will have some people land on the wrong side of that line that may not really belong there.

[talltex]

Having access to some saved up money is a factor in determining which direction the winds of justice blow.

I was arrested and all that goes with it. The District Attorney felt that the arresting officers case didn't hold water and there was no prosecution.

The Expunction Order to remove that arrest from DPS records cost me 2,000 $ in fees. I'm told that similar things can happen when a disgruntled soon to be ex spouse makes an accusation of mistreating a child.

An accusation can carry the weight of a conviction. Maybe the power to pardon could help, but I don't see that as being available to all. Hopefully it wouldn't be another example of Justice Sold Here shopping.

salty

That is what Charles orginal contention addressed...that in his opinion successful completion of a deferred adjudication sentence should also include an AUTOMATIC EXPUNCTION of the record for that offense. My position was that it should apply to ALL offenses, if the circumstances warranted the deferred adjudication to begin with...particularly those that currently carry a lifetime arrest record penalty. I was arrested for DWI ,28 years ago, in my early twenties...never arrested for any offense before or since...given deferred adjudication...but the law changed on Jan. 1, 1984, creating an "alcohol related offense category" that carries a permanent record penalty. I was misled to think that after the deferred adjudication period, I wouldn't have a "conviction" on my record. I wasn't aware of it until 25 years later when it exluded me from being able to act as instructor for my son's parent taught driver's ed program. That's a misdemeanor charge, not a felony...but I have it on my record for life. The automatic expunction clause would eliminate the need for seperate "pardon" and ensure that there would be no Justice Sold Here situation.

[Dragonfighter]

I'm very much in favor of the concept, but in the end I believe few people will benefit. There are tens of thousands of deferred adjudications each year throughout the State and the Board will not have time to consider them and make a recommendation to the Governor. I think the law should be changed such that all successfully completed deferred adjudications result in the defendant's record being expunged.

I am really not that familiar with deferred adjudications so I can't speak to the specifics, but in general, I would prefer having the record sealed instead of expunged. Allow the seal to be opened for certain defined circumstances such as: by LEO/prosecutor if the sealed conviction would have an affect on the nature or character of new charges being considered against the person; for background check for employment as peace officer or CO; if the sealed offense would be admissible in the trial for new charges; keep the DNA in the database if it is there.

I also think sealing should only be available for first-time offenders. If they committed multiple crimes at the same time, or within the same short time window, they could all be lumped together as "first-time".

The whole theory of deferred adjudication, and the lies that are told to defendants, is that successful completion of the probationary period means they don't have a conviction and they can go on with their lives. A large percentage of people accepting deferred adjudication are innocent and simply cannot afford a competent attorney, so don't think that everyone who "got deferred" are guilty and are getting off light.

Some crimes are not eligible for deferred adjudication so if society wants to be able to use deferred adjudications against some defendants, then the better policy would be to add that crime to the not eligible list.

Chas.

I agree. I personally knew someone who was told by a friend over beers that he was going to rob a non-specified convenience store, then laughed it off. As it turns out the friend was serious (something about a drunk man's words comes to mind) and he was caught. Somewhere in the investigation that conversation came to light and my acquaintance was prosecuted as an accessory because he didn't call the police and tell them that his friend intended to rob some store, somewhere at sometime. Yes, it was an election year.

He was offered deferred adjudication and promised it would "go away" after he completed it; he was one who could not afford a competent attorney. Well, he completed it yet somehow he could not purchase a firearm, it cropped up in denial of employment though he truthfully put down "no convictions", etc. It's been 17 years since I last saw him or his wife so I don't know what, if anything, has changed since then. I think it stands as a perfect example of what is wrong with the current state of deferred adjudication status.

[saltydog452]

Dang talltex, I just don't know.

From what I think I understand, deferred punishment is an agreement agreed on by the DA, and the defense. And, maybe between the Judge's ears. It is an admission of guilt and that admission can't get undone.

You're accused of flatuence in public, and don't have the resources or language skills to contest the accusation. You accept a ten dollar fine and hang your head in remorse while listening to a stern warning not to eat cabbage and hot links prior to going to Bass Hall. Deferred punishment is offered providing that you go forward and sin no more. Who wouldn't accept a deal like that?

Since you were either convicted of, or confessed to, a crime, the history is there. And can't (legally) be expunged.

That'd be where the pardon comes in.

I just don't see that happening for the unwashed masses. Not everybody has access to the Govs office. I see it as just another way that justice is pimped out.

Pandering is illegal. Unless maybe you just happen to be a legislator.

salty