Hill v. State

¶1OPINION

¶2ON APPELLANT’S MOTION FOR REHEARING

¶3In his motion for rehearing, appellant renews his contention that the trial court erred by conducting the revocation hearing less than ten days after the appointment of counsel.

¶4As we noted in our original opinion, appellant made no complaint to the trial court; and this argument was raised for the first time on appeal.

¶5A probation revocation hearing is not an adversarial proceeding, a civil action, or a criminal prosecution. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963), cert. denied, Thompson v. United States Bd. of Parole, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963); Hood v. State, Tex.Cr.App., 458 S.W.2d 662. In*203stead, it is administrative in nature, a means of protecting society and rehabilitating lawbreakers. United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir.1970); United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970), aff’d per curiam, 438 F.2d 1027 (5th Cir. 1971), cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1972).

¶6While such a hearing is administrative in nature, both Texas statutory law1 and the United States Constitution2 provide that the probationer has the right to be assisted by counsel. The right to be assisted by counsel contemplates that such counsel shall have adequate time to prepare. However, belated appointment of trial counsel does not constitute a per se violation of constitutional rights. Chambers v. Maroney, 399 U.S. 42, 91 S.Ct. 1975, 26 L.Ed.2d 419 (1970). To constitute the denial of constitutional rights at trial, harm must be shown. Gallarelli v. United States, 441 F.2d 1402 (3rd Cir.1971); Rastrom v. Robbins, 440 F.2d 1251 (1st Cir.1971); United States ex rel. Rybarik v. Maroney, 435 F.2d 1292 (3rd Cir.1970); Lupo v. United States, 435 F.2d 519 (8th Cir.1970); Konvalin v. Sigler, 431 F.2d 1156 (8th Cir.1970). And in administrative proceedings objection may be waived where, as here, appellant makes no attempt to raise his objection until appeal. See generally, Lichter v. United States, 334 U. S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948); Ross v. Stewart, 227 U.S. 530, 33 S.Ct. 345, 57 L.Ed. 626 (1913); Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563 (1903).

¶7Moreover, we do not construe Article 42.12, Sec. 3b, V.A.C.C.P., as requiring a different result. That statute provides, in part, that:

“If such defendant has no counsel, it shall be the duty of the court to inform him of his right to show cause why his probation should not be revoked; and if such a defendant requests such right, the court shall appoint counsel in accordance with Articles 26.04 and 26.05 of this Code to prepare and present the same; and in all other respects the procedure set forth in Sec. 8 of this Article shall be followed.” 3

¶8Article 26.04, V.A.C.C.P. provides:

“(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.

“(b) The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”

¶9Article 42.12, Sec. 8, V.A.C.C.P., provides, in part:

“At any time during the period of probation the court may issue a warrant for violation of any of the conditions of the probation and cause the defendant to be arrested. Any probation officer, police officer or other officer with power of arrest may arrest such defendant without a warrant upon the order of the judge of such court to be noted on the docket of the court. A probationer so arrested may be detained in the county jail or other appropriate place of detention until he can be taken before the court. Such officer shall forthwith report such arrest and detention to such court. Thereupon, the court shall cause the defendant to be brought before it and after a hearing *204without a jury, may either continue or revoke the probation and, if probation is revoked, shall proceed to dispose of the case as if there had been no probation.

“ . . . . The right of the probationer to appeal to the Court of Criminal Appeals for a review of the trial and conviction, as provided by law, shall be accorded the probationer at the time he is placed on probation. When he is notified that his probation is revoked for violation of the conditions of probation and he is called on to serve a sentence in a jail or in an institution operated by the Department of Corrections, he may appeal the revocation.”

¶10It has long been the rule in this state that statutes should be given a common sense construction. e. g. Nat’s Surety Corp. v. Ladd, 131 Tex. 295, 115 S.W.2d 600; Lewis v. Alexander’s Ex’rs, 34 Tex. 608 (1869). Courts must assume that the legislature said what it intended to say in the language of a statute and, unless the statute is ambiguous should construe it as written. See, e. g. Government Personnel Mutual Life Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525; Ex parte Frye, 156 S.W.2d 531; Thomas v. State, 129 Tex. Cr.R. 628, 91 S.W.2d 716; Ex parte Woods, 52 Tex.Cr. 575, 108 S.W. 1171.

¶11In the instant case, the plain meaning of Article 42.12 is that the provisions of Article 26.04 paragraph (a) shall be followed when the court appoints counsel. However, nothing in Article 42.12 purports to incorporate Article 26.04 paragraph (b), which provides for the ten day preparation requirement. To the contrary, all such procedure is governed by Section 8 of Article 42.12, which does not contain such a provision.

¶12We therefore hold that, absent a showing of harm, nothing in Article 42.12, V. A.C.C.P., or the United States Constitution requires a preparation period of ten days prior to a revocation hearing.

¶13The motion for rehearing is overruled.