Fariss v. Tipps

• Citation: 463 S.W.2d 176
• Decision Date: 20 January 1971
• Docket Number: No. B--2350,B--2350
• Parties: Ronald E. FARISS, Relator, v. Arthur TIPPS, Respondent.
• Court: Supreme Court of Texas

Page 176

463 S.W.2d 176

Ronald E. FARISS, Relator, v. Arthur TIPPS, Respondent.

No. B--2350.

Supreme Court of Texas.

Jan. 20, 1971.

Rehearing Denied Feb. 17, 1971.

Frank Maloney, Austin, for relator.

Jim Phagan, Dist. Atty., Wichita Falls, Jim D. Vollers, State's Atty., Austin, for respondent.

CALVERT, Chief Justice.

Relator Ronald E. Fariss seeks a writ of mandamus to compel a speedy disposition by the Honorable Arthur Tipps, District Judge, of a pending motion to revoke relator's probation. The petition will be conditionally granted.

On March 3, 1967 Relator Fariss pleaded guilty to an indictment of robbery by assault in cause No. 13,223--A in the 30th Judicial District Court of Wichita County, Texas. At that time he was assessed five years in the Texas Department of Corrections, but the imposition of the sentence was suspended and he was placed on probation pursuant to the provisions of Art. 42.12, Code of Criminal Procedure.

The judgment of the court placing relator on probation made that probation expressly 'subject to the continuous supervision of this Court, and the terms and conditions of probation as hereinafter set out.' The conditions included the following:

'The Defendant:

'1. Shall commit no offense against the penal laws of this State or of any other State or the United States, and shall violate no penal ordinances of any political subdivision of this State or any other State.'

'8. Shall remain in Wichita County, and shall not, under any circumstances, leave said County except with the written consent of the Court or Probation Officer.

'9. Shall report in person or in writing to the assigned Probation Officer in and for Wichita County, Texas, (or his successor in office) at least once each 30 days or as directed by the Court or the Probation Officer.'

'11. Shall, to the best of his ability, work at some suitable, gainful employment, or elsewhere.'

'13. Shall pay a monthly Probation Service Fee of $8.00 through the Wichita County Probation Department, * * *'

On February 20, 1969 the District Attorney of Wichita Falls filed a motion to revoke relator's probation, setting forth the following:

'In violation of said terms and conditions of said probation, the said Defendant was convicted on the 7th day of November, 1968, in Cause No. 67759--D in the County Court of Wichita County, Texas, of the offense of failure to pay lodging; the defendant has failed to report regularly; the defendant has failed to advise his probation officer of his place of residence or employment; the defendant has failed to pay the monthly probation service fee as ordered by the court; the defendant has failed to secure and maintain gainful employment. * * *'

In the months of February and March of 1969 relator was tried and convicted on multiple charges in the State of Virginia, and on April 10 he was placed in the Bland Correctional Farm, Bland, Virginia. In response to the warrant filed with the Virginia authorities, they have informed the Sheriff of Wichita County that relator will complete all sentences at Bland Correctional Farm on February 22, 1973, at which date he will be delivered to the City of Roanoke in response to four additional warrants charging relator with the issuance of fraudulent checks.

The record reflects that the detainer was filed against relator in early 1969 and that he began seeking a hearing as early as September 1969. On October 6, 1969 he was advised by the District Attorney of Wichita County, 'I will take your case under advisement.' In response to subsequent trial requests, the District Attorney advised relator that he did not intend to make a decision concerning his case until relator was 'ready to be released by the Department of Corrections there in the State of Virginia.' When relator sought the assistance of this court in May, 1970, in obtaining a trial of the revocation proceeding, and this court made inquiry of the trial judge concerning proposed action, the judge responded that he was advised by the District Attorney that he had 'no present plans to have the defendant brought back from Virginia for the revocation hearing' and did 'not plan to release the detainer, unless required to do so.' Further inquiry to the judge, with copy to the District Attorney, brought a response from the District Attorney giving it as his opinion that the State could not be required to obtain the presence of a prisoner of another jurisdiction for trial on criminal charges in this State, and concluding that it was his intention to leave the 'detainer with the defendant in Virginia and take no action to return him to Wichita County until his release from the Virginia penitentiary.'

On August 31, 1970, the respondent judge formally declined to set the proceeding for hearing. At no time in either preliminary correspondence or in the briefs filed in this court by the District Attorney and the State's Attorney representing the respondent judge has anyone suggested that the trial judge has discretion to order or deny a speedy trial, or that in denying one in this case he has done so in the exercise of a sound judicial discretion. To the contrary, the record as a whole indicates, quite clearly, that refusal of the judge to set the proceeding for trial is because of his belief that a defendant in a revocation proceeding is not legally entitled to a speedy trial under any circumstances.

Relator is entitled to issuance of the writ of mandamus he seeks if (1) the state constitutional right to a speedy trial is applicable to a proceeding to revoke probation, Or (2) the right to a speedy trial as provided by the Sixth Amendment to the Constitution of the United States is a due process requirement made applicable to the States by the Fourteenth Amendment. We hold that he is entitled to the writ under each of the constitutional provisions.

Sec. 10, Art. I, Constitution of Texas, provides: 'In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. * * *' It will be noted that the quoted provision guarantees to the accused in 'all criminal prosecutions' (1) a trial by an impartial jury, (2) a public trial, and (3) a speedy trial. The question under the state constitutional provision, then, is whether a proceeding for revocation of probation is a 'criminal prosecution' to which the constitutional guarantees apply.

The Court of Criminal Appeals has held that a revocation proceeding is not the type of 'criminal prosecution' in which the defendant can demand a trial by jury. See Hood v. State, 458 S.W.2d 662 (Tex.Cr.App.1970) and Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774 (1951). For present purposes we may assume that those cases are correctly decided. The Court of Criminal Appeals definitely has Not ¹ held, however, that a defendant does not have a right to a public trial or a speedy trial in a probation revocation proceeding; and, the question being an open one, we should not hesitate to hold that these rights may be demanded in such a proceeding. Indeed, Art. 24, Texas Penal Code, would seem to require that holding. It provides:

'A 'criminal action' means the whole or any part of the procedure which the law provides for bringing offenders to justice; and the terms 'prosecution' and 'accusation' are used in the same sense.'

By this provision a 'criminal prosecution' expressly includes a proceeding in which probation may be revoked and sentence imposed.

The purpose of the speedy trial provision of our constitution was articulated by this court in Ex Parte Turman, 26 Tex. 708 (1863), as follows:

'This constitutional provision was adopted upon general considerations growing out of experience of past times, and was intended to prevent government from oppressing the citizen by holding criminal prosecutions suspended over him for an indefinite time; and it was also intended to prevent delays in the customary administration of justice, by imposing upon the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal accusations.'

If this announced purpose is to be implemented in all areas of the trial process in which an accused may suffer prejudice from unreasonable delay, the right to a speedy trial of a revocation proceeding should be recognized and enforced by this court. There is an indication in the opinion in Campbell v. State, 456 S.W.2d 918 at 921 (Tex.Cr.App.1970), that the Court of Criminal Appeals would not be loath to follow. The court there said:

'Since the earlier decisions of this Court concerning the nature of the revocation proceedings, it has now been held that while a state is not constitutionally required to provide for probation and revocation proceedings as a part of its criminal process any more than it is required to provide for appellate review, when it does, then due process and equal protection of the law is fully applicable thereto. (Cases cited.)

'It would indeed now be difficult to conclude that probation revocation hearings are not criminal proceedings 'where substantial rights of an accused may be affected.' (Cases cited.) The revocation proceedings cannot be isolated from the context of the criminal process. * * *'

It is unthinkable that either this court or the Court of Criminal Appeals would hold that a defendant in a revocation proceeding could be denied a 'public' trial and be subjected to a private and secret trial over his protest; and the reasons for holding that one cannot be denied a 'speedy' trial are equally cogent. It would not make good sense to hold that one charged with a minor traffic violation, considered by neither the defendant nor third persons as a serious disqualification for employment, could demand and obtain a speedy trial, as we would be required to do, and yet that one denied employment opportunities because he is faced with years of imprisonment in a pending revocation proceeding, which may have no valid basis, could not demand a trial. Once we hold, as we do, that our co...