Ex parte Doan, PD-1547-10

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
PartiesEx parte DUSTIN DOAN, Appellant
Docket NumberNO. PD-1547-10,PD-1547-10
Decision Date20 June 2012

Ex parte DUSTIN DOAN, Appellant

NO. PD-1547-10


Delivered: June 20, 2012


KELLER, P.J., filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.

The Court makes a convincing argument that a probation-revocation proceeding is not an administrative hearing. But it fails to say what that proposition has to do with whether Travis County and Brazos County are the same party. In my opinion, this gap in the argument is fatal to the Court's ultimate holding.

The question in this case is whether the Travis County Attorney is bound in a criminal prosecution by what happened in a probation-revocation proceeding that was prosecuted by the Brazos County Attorney. The court of appeals relied upon state-law cases for the proposition that the two governmental entities are not the same party, while appellant relies upon a federal double-

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jeopardy case1 to show that they should be treated as the same party. The Court concedes that double-jeopardy principles do not apply in this case,2 but it holds that the two governmental entities are nevertheless the same party under state law. In so holding, the Court sidesteps appellant's argument, overrules, sub silentio, the holding in Ex parte Tarver that double-jeopardy applies to probation revocations, and incorrectly analyzes the state-law issue.

I agree that the Double Jeopardy Clause does not apply in cases such as the one before us, but so holding requires that we overrule Tarver. We should not overrule precedent by implication, without any explanation, so I would do so expressly, for the reasons set forth. I would also hold that the two prosecuting authorities in the present case are not the same parties under state law.


The Double Jeopardy Clause of the United States Constitution does not bar successive prosecutions brought by different sovereigns.3 Conversely, the Double Jeopardy Clause may bar successive prosecutions that are brought by the same sovereign.4 Whether two government entities are different sovereigns depends upon whether they "draw their authority to punish the offender from distinct sources of power."5 By "distinct sources of power," the Supreme Court means that the sources of power are distinct when viewed from the perspective of the United States Constitution:

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The federal government,6 the various states,7 and Indian tribes are separate sovereigns from each other,8 but cities are not separate sovereigns from the states in which they exist.9 How a state constitution distributes power to the governing bodies of the state is irrelevant; those governing bodies are all organs of the state for federal double-jeopardy purposes.10

But the distribution of power across state government can be taken into account when considering purely state-law claims.11 To the extent that a particular collateral-estoppel claim derives solely from state law, separate state governmental entities can be separate parties for the purpose of deciding whether a subsequent prosecution is barred.12 In Brabson, for instance, we found that DPS was not the same party as the Dallas County District Attorney for state-law collateral-estoppel purposes.13

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The double-jeopardy question turns upon the continued vitality of Ex parte Tarver, where this Court held that if a defendant prevails on a motion to revoke probation, collateral estoppel could bar the later prosecution of an offense that was alleged in the motion to revoke.14 We held that collateral estoppel applied as a matter of federal constitutional double-jeopardy law.15 As we shall see below, that holding is out of step with the vast majority of jurisdictions that have addressed the issue. And while our trial-type procedures may distinguish our probation-revocation proceedings from most other jurisdictions, the applicability of double-jeopardy protections turns, not upon the nature of the proceeding, but upon the potential result of the proceeding.16 As will be explained, the potential result of probation-revocation proceedings is not a result that implicates double jeopardy.

A. We Are Out of Step with Other Jurisdictions

The vast majority of jurisdictions that have addressed the situation in which a defendant tries to use a prior favorable determination from a probation-revocation proceeding at a later criminal prosecution have held that double-jeopardy protections were not implicated and collateral estoppel did not apply.17 This is the view of the Fifth and Sixth Circuits;18 the District of Columbia Court of

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Appeals;19 the courts of last resort in Arizona, California, Connecticut, Florida, Maine, Massachusetts, Mississippi, New York, Rhode Island, and Vermont;20 and intermediate appellate courts in Georgia, Michigan, and Wisconsin.21 Moreover, in declining to apply collateral estoppel in the State's favor, the Supreme Court of Colorado relied upon authorities that declined to apply collateral estoppel in the defendant's favor.22 And without specifically addressing the collateral-estoppel context, courts of last resort in Kentucky, Montana, and Nebraska have found that double-jeopardy protections are not implicated by probation-revocation proceedings.23 The Supreme Court of Vermont characterized the position that "double jeopardy does not attach at a revocation hearing

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to bar a trial of the new criminal charges" as "universally acknowledged,"24 and said that most courts have also concluded that collateral estoppel does not apply.25

Outside of Texas, the cases that take the position that a prior determination in a probation-revocation proceeding can have collateral-estoppel consequences in a subsequent criminal prosecution are sparse, and each of those cases has at least one complicating factor that may undermine its vitality or its relevance to our discussion. The Supreme Courts of Illinois and Oregon have held that, in theory, a probation-revocation proceeding could have collateral-estoppel consequences, but did not find collateral estoppel to apply in the cases before them.26 In addition, the Illinois court's pronouncement regarding collateral estoppel was based upon both Ashe and the court's earlier decision in People v. Grayson,27 but Grayson has since been overruled, at least in part.28 An Illinois court of appeals has applied collateral estoppel to the fact pattern before us, but it too, relied upon the later-overruled Grayson case.29 And the Oregon Supreme Court case seems

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to be based upon statute, with no mention in the decision of Ashe or of the constitutional guarantee against double jeopardy, except for the bare citation of a law review article entitled "Criminal Law, Double Jeopardy and Res Judicata."30 The Oregon Court of Appeals has applied collateral estoppel to the fact pattern before us, but it did so expressly as a matter of state statutory law and stated that the case did "not turn on the application of the constitutional standard of double jeopardy (or its ingredient, collateral estoppel as a principal of constitutional law)."31 In a plurality opinion, the Supreme Court of Pennsylvania gave collateral-estoppel effect to an evidentiary-admissibility ruling from a prior revocation hearing that was in the State's favor.32 Inferring a double-jeopardy rule from a plurality opinion in the State's favor would seem difficult enough, but in a later case, the Pennsylvania court said, "Probation is given by grace, not by right. To hold the Double Jeopardy Clause is somehow implicated at a VOP [violation of probation] hearing would elevate something of grace to the status of constitutional dimension."33

In holding that double jeopardy is not implicated by a favorable finding in a probation-revocation proceeding, many courts have explained that jeopardy does not attach to probation-

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revocation proceedings because the purpose of such proceedings is not to punish a criminal defendant for violating the law but to take into custody a person who has shown himself to be unsuitable for probation.34 Distinguishing Breed, many courts have held that probation-revocation proceedings are not "essentially criminal" for double-jeopardy purposes.35 A probation-revocation proceeding does not place the defendant in jeopardy because a revocation hearing is not a criminal prosecution; that is, it is not a proceeding that could result in a conviction.36 Further, courts have held that a revocation hearing is simply a continuation of the earlier prosecution and so no jeopardy

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attaches on a new offense that is made the basis of revocation.37 Some courts have also held that a probation-revocation hearing is not a "valid and final judgment" for collateral-estoppel purposes because it is not a final determination of the probationer's involvement in the new criminal activities.38

B. Trial-Like Nature of Probation-Revocation Proceedings
Does Not Mean those Proceedings Implicate Jeopardy

What is important to note about the jurisprudence of other jurisdictions is that there are generally two holdings: (1) the proceedings at issue do not implicate the collateral-estoppel component of the Double Jeopardy Clause,...

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