DOUBLE JEOPARDY - THE STATE MAY SEEK TO REVOKE PROBATION A SECOND TIME FOR THE SAME PROBATION VIOLATION WHEN PROBATION IS NOT REVOKED AT THE FIRST REVOCATION HEARING - DAVENPORT V. STATE, 574 SW2D 73 (1978)

• NCJ Number: 60506
• Journal: American Journal of Criminal Law Volume: 7 Issue: 2 Dated: (JULY 1979) Pages: 277-282
• Author(s): J RAGAN
• Date Published: 1979
• Length: 9 pages
• Corporate Author: University of Texas
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

STATING THAT A PAROLE HEARING IS AN ADMINISTRATIVE, NOT A CRIMINAL PROCEEDING, THE TEXAS STATE COURT OF CRIMINAL APPEALS UPHELD A REVOCATION OF PAROLE OBTAINED JUST 3 WEEKS AFTER REVOCATION WAS DENIED FOR THE SAME INCIDENT.

Abstract

IN DAVENPORT V. STATE (1978) THE COURT HELD THAT THE PROTECTIONS OF THE DOUBLE JEOPARDY CLAUSE DO NOT APPLY TO PROBATION REVOCATION HEARINGS. DESPITE THE FACT THAT A JUVENILE HEARING IS NOT CONSIDERED A 'CRIMINAL PROCEEDING,' THE U.S. SUPREME COURT HAS EXTENDED THE DOUBLE JEOPARDY PROTECTION TO JUVENILE COURT PROCEEDINGS. OTHER ELEMENTS OF 14TH AMENDMENT DUE PROCESS PROTECTION HAVE ALSO BEEN EXTENDED TO PROBATION REVOCATION HEARINGS. THE U.S. SUPREME COURT HAS STATED THAT THE PROBATIONER HAS THE RIGHT TO A PRELIMINARY AND A FINAL HEARING BEFORE REVOCATION BECAUSE THE HEARING WOULD RESULT IN A SUBSTANTIAL LOSS OF LIBERTY. IT HAS ALSO UPHELD A LIMITED RIGHT TO COUNSEL. THE REASONING BEHIND THE REFUSAL TO EXTEND PROTECTION AGAINST DOUBLE JEOPARDY TO PAROLE AND PROBATION HEARINGS IS FAULTY. PROTECTION IN A CASE SUCH AS DAVENPORT WOULD BE A PARTIAL EXTENSION OF THE DUE PROCESS PROTECTION BASED ON THE U.S. SUPREME COURT'S INTENTION TO APPLY PROTECTION AGAINST DOUBLE JEOPARDY WHERE VITAL INTERESTS ARE PRESENT, REGARDLESS OF WHAT LABEL IS ATTTACHED TO THE PROCEEDING. NOTES AND REFERENCES ARE INCLUDED. (GLR)