Questions you can't ask a probationer in Fort Worth

Liberty and Justice for Y'all alerts us to a potentially momentous decision out of Fort Worth's Second Court of Appeals which found that probationers retain their Fifth Amendment right against self-incrimination, a decision which likely contradicts the day-to-day practices of probation departments statewide. According to LJ4Y:

In Ex Parte Dangelo, the applicant, who was on probation for pleading guilty to one count of "injury to a child," filed an application for writ of habeas corpus when the trial court incarcerated him after he refused to answer the following questions during a polygraph exam given to him as part of his probation:

1. "Since you have been on probation, have you violated any of its conditions?";
2. "Since you have been on probation, have you had sexual contact with any persons younger than 17?";
3. "Since you have been on probation, have you tried to isolate and child for sexual purposes?"; and
4. "Since you have been on probation, have you intentioanlly committed any sexual crimes?"

The court agreed that violating the probationer's bond for refusing to answer those questions violated his Fifth Amendment right against self-incrimination. Extraordinary! Key to the court's reasoning (from pp. 7-8 of the opinion):

The Texas legislature has explained that the purpose of the communitysupervision statute is to remove “from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems ofcommunity supervision in the public interest.” Tex. Code Crim. Proc. Ann. art. 42.12, §1 (Vernon Supp. 2009) (emphasis added). Thus, the trial court’s broad authorityto create community supervision terms does not extend to imposing terms thatviolate a defendant’s constitutional rights as balanced with the goals of the defendant’s probation.

Questions related to probation violations or the offense for which the probationer was convicted are still fair game, but "if a condition of a defendant’s probation requires the defendant to admit to anoffense that could lead to criminal charges independent of those that the defendant is serving probation for, the defendant has a Fifth Amendment right to not answer such questions."

Who knows whether the Texas Court of Criminal Appeals might ultimately hear this case or how that divided court might rule? But for now, at least in Fort Worth, the Fifth Amendment to the US Constitution still applies to probationers. Who'da thunk it?

If the Texas high criminal court did reverse the 2nd Court of Appeals, it might set the CCA up for yet another showdown with SCOTUS. The Cowtown appellate court relied primarily in its ruling on a US Supreme Court case from 1984, Minnesota v. Murphy, in which SCOTUS held that:

A defendant does not lose [Fifth Amendment protection] by reason of his conviction of a crime; notwithstanding that a defendant isimprisoned or on probation at the time he makes incriminatingstatements, if those statements are compelled they are inadmissible ina subsequent trial for a crime other than that for which he has been convicted. . . . .'

If [a defendant asserts Fifth Amendment rights], he “may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time beingassured that neither it nor its fruits may be used against him” in asubsequent criminal proceeding.

I don't know what the precedents are in other Texas appellate jurisdictions, but this ruling seemingly would alter quite a few common practices at Texas probation departments if it were applied statewide. Indeed, it will be interesting to track what will be the impact within the jurisdiction of Texas Second Court of Appeals.