“Sometimes life gives you a second chance because just maybe the first time you weren’t ready.”
- Unknown Author – from S.K. Lessly Quotes and others.
Parker County District Attorney Jeff Swain has instituted a first offender policy, called Pre-trial Diversion, during his first three years of office. Swain was elected in 2020.
The policy began in May 2021. There are three programs:
These are the first programs of their kind for the Parker County District Attorney’s Office. There are some similar programs for misdemeanors administered by County Attorney John Forrest. A felony charge is much more serious than a misdemeanor.
A felony criminal charge can have permanent life-changing results. There can be a loss of civil rights to vote, hold office, and admission to certain licensed professions. These include law school, law enforcement, teaching, and medical school to name a few.
“The program is designed to help high school and college kids to have a charge expunged so that the charge does not permanently affect their lives,” Swain said.
Expunction of certain offenses means the record of the arrest and charge is permanently removed from public and law enforcement computers. It includes erasing the records from judicial records, including the clerk’s office. It is as if it never happened.
Not all charges are eligible for the program. Violent offenses, sexual offenses, DWI, and other serious offenses are not eligible for the program.
There is an extensive list of eligible offenses, but the majority of cases are first-time drug offenses involving high school and college-age offenders from age 17-22. This is the Youthful Offender Program. There is also a First Offender Program for people of persons of any age, but there are fewer eligible crimes for this program. There is also a Veteran’s Program for certain eligible offenses.
According to Swain and other reports, there is a big problem for the 17-22 age group with a drug called tetrahydrocannabinol (THC), an extract of marihuana. Possession of this drug is often a felony. Possession and use of THC is rampant in Texas, including Parker County. A detailed article on the subject appeared in the Texas Tribune on Feb. 22, 2023, by reporter Jolie McCullough. A lot of first offenders have THC cases.
Starting with the arrest, the mental trauma begins for the arrested person. They have done something to attract the attention of law enforcement which leads to probable cause to arrest the person.
If they are in a car or truck, they will be removed from their vehicle. Their car may be towed. They will experience the feeling of being handcuffed. They will feel powerless. They will be driven to a jail where they will be placed in a cell with other offenders. The noise, the smells, the clanking of cell doors add to the experience. They will be arraigned by a magistrate. Most will get to call their parents. Posting bail is usually next.
Once they are released, they may face their parents, spouse, or other loved ones. There could be a very expensive charge to get the vehicle back from the auto impound. There may be consequences of not being able to attend regular school, which means separation from classmates and friends.
If the person qualifies for a First Offender Program, there is a way out, if they take the responsibility to complete it. Most people never want to go through the experience of being arrested, handcuffed and jailed ever again.
First Assistant District Attorney Kathleen Catania screens the drug cases and Swain screens the other cases.
If the client has an attorney already, the lawyer may contact the DA’s office about getting their client into the program. If the person can’t afford an attorney, one will be appointed for them. Swain says the individual must be represented by an attorney because of the significant rights they give up to get into the program.
Swain said that one frustration on his office’s part involves attorneys who don’t respond. Both Swain and Catania will call an attorney and tell the attorney that their client is eligible if the attorney has not already filed an application. Some attorneys don’t reply.
The person will give up many rights to be in the program, including the right to a jury trial. They will also give a written confession and enter into a contract with the DA. It is a complex set of rights and lengthy documents that requires an attorney to explain.
There can be no previous criminal record, including juvenile record. Mental health, medical, and social history is disclosed. There is a $200 fee to enter the program and a $60 per month supervision fee for the year-long program.
Urinalysis (UA) to check for the presence of drugs is an essential part of the program. A UA is required 30 days before entering the program and the day of entry into the program. The program is administered by the Adult Community Supervision Department, commonly known as the probation office.
If enrolled in school, the person must give proof that they are enrolled, attending, and passing. If the client has no high school diploma, they are required to get a GED. Otherwise, the person must submit proof of employment and they have to work unless disabled. There has to be medical proof of such disabilities.
UAs are submitted on a regular basis while in the program to the probation officer. Drug classes are required. Clients report regularly to the probation officer for one year.
The client has to check the probation office’ s computer daily to see if it is their day to submit a UA.
Each person is assigned a random color. The colors include purple, black, blue, red, gold, olive, aqua, brown, orange, yellow, pink, green, white, navy blue, maroon, mocha, burgundy, tan, nickel, turquoise, copper, violet, bronze, gray. If their color comes up on the computer on any given day, a UA is required.
The random color system has resulted in fewer “dirty” UA’s and presumably more successful completions according to Swain.
For veteran’s to be eligible for that program they must be honorably discharged. If family violence is involved, the victim spouse or other family member has to agree and counseling is mandatory. There are also veteran mentors required to assist the veteran offender.
One dirty UA will cause the person to be dismissed from any of the programs and they are sent to regular court, where a much more difficult probation is possible and expunction is not an option.
One of the huge benefits of the program is that it lasts for one year — a relatively short time. Most felony probations are a minimum of two years, but most are four years or more.
If the person completes the program, they are entitled to expunction, and a clean record.
District Judges Craig Towson of the 43d District Court and Graham Quisenberry of the 415th District Court are known as no non-sense, tough on crime judges and they are both in favor of the program.
“I would rather a defendant become a taxpayer instead of a consumer of tax dollars,” Towson said. That means a person with no record becomes a taxpaying citizen and not costing taxpayers money to incarcerate them.
“The importance of removing the disabilities of a defendant cannot be overemphasized,” Quisenberry said. These are the disabilities discussed above: the right to vote, to nserve on a jury, and others are very important rights.
Defense attorney Robert Duboise echoed the sentiments of the judges in keeping first offenders, especially young ones, from having a permanent blemish on their records. He has had a client complete the program.
And what is the bottom line?
There are 35 people in the program, and 26 people have completed the program and qualified for expunction. Not everyone succeeds: 15 people failed the program. Some have qualified and never started the program, possibly because they could not pass the initial UA. Overall, the success rate is 60 percent.
Those who have successfully completed the program get their criminal records expunged by agreement of the District Attorney’s Office. The judges sign an order that tells all law enforcement, clerks, and other personnel to delete the record of the person’s arrest and prosecution of their case from computers and other paper records.
At that point, the second chance begins.
They have an opportunity to succeed in life without a criminal record.
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