Selective Probation in Harris County, Texas

New Probation Laws to Shock All: 

Selective probation in Harris County, Texas? I do not agree.  As a Houston Criminal Defense Attorney, I must admit that I was shocked when I heard a rumor regarding the Harris County District Attorney’s Office implementing a new policy whereby prosecutors would not offer probation to an accused unless the accused swore to be residing legally in the United States. One of my close friends, that is a prosecutor himself, confirmed not only that this is a fact, but there will be a document that a defendant will need to swear to before a plea agreement is finalized.

This new policy wrong on several levels.

It seems to be politically motivated. Pat Lykos, the District Attorney of Harris County, was elected to uphold the law of the state of Texas. The policy may seduce the most steadfast of conservative Republicans in Houston and beyond, but it is misplaced and a subtle form of racism. It is very easy for people to say “He is an illegal get him out of our country.”

However, the law states that anyone that is in this country is presumed to be here legally. Also, every person in this country has a 5th amendment privilege regardless of their status. On one hand, by requiring anyone undocumented to swear that they are here legally before receiving probation the District Attorney’s Office is encouraging them to commit perjury.

On the other hand, if the defendant tells the truth the consequences are twofold. They will not get probation and they have given the Government evidence to prove that they are committing a Federal Offense. What competent criminal defense attorney would advise their client to do anything other than to remain silent? Thus, the District Attorney’s office is punishing a defendant for exercising their right to remain silent and that is a clear constitutional violation.

Below is a copy of the 5th Amendment. Perhaps, the Lykos administration should give it a read if they have not done so in a while.

No person shall be held to answer for a capital, or otherwise, infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

With this new policy, the Harris County District Attorney’s Office is disregarding Texas law. For example, the law in Texas clearly states that low-level felony drug possession for first-time offenders is mandatory probation. The law does not differentiate between those that are here legally and those that are undocumented. The Lykos administration is essentially stating that they will not follow Texas law. Correct me if I am wrong, but the last time I checked our District Attorney was elected to follow the laws of Texas.

More practically speaking, what defense attorney that has a client on a bond that is undocumented will enter into any type of plea bargaining when they know that a prosecutor’s hands are tied when it comes to getting probation for their client. A competent criminal defense attorney knows that a jury is not precluded from granting an undocumented person probation. Additionally, any potential juror that can not consider granting probation for someone undocumented should be exposed during voir dire and kept from serving on the jury.

I hope that Harris District Attorney’s Office reconsiders this policy and decides that despite being a hit politically, legally it is without merit.