My husband is in county right now awaiting transfer to Dominguez State Jail in San Antonio, TX. He had been on a 5 yr probation but got MTR'd twice. At the MTR court date, he was sentenced to 200 days, our lawyer tells me that is only 20 days more than the minimum so he got a good deal. He has 87 days of back time. We were thinking he would get the 20% time off because of that new deal passed in September '11 but.. His original charge happened before that so the lawyer misinformed us before and has corrected himself when I asked again today. I am so frustrated with this lawyer we shelled out thousands of dollars for. My question is.. Is there ANYTHING myself or my husband can do(classes?) to get out sooner? We want him home for the holidays and we need him to get back to work! Please help!
As a criminal lawyer, I have nearly no contact with the prison system. Neither the judge, the probation officer, the district attorney nor the defense lawyer have much influence over the prison rules and policies. The only thing that is absolute certain is that if you plea to 200 days, you should be mentally prepared to do 200 days. Your husband violated probation conditions TWICE that resulted in a jail sentence. He could have gotten 2 years, but for the work of your good lawyer, he only got 20 days more than the minimum, AND he was credited his back time. I know this may not be what you want to hear, but he was very fortunate.
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By the way, I don't think it would be likely that he would be home for the holidays even if he got the credit. If he was to receive credit for the entire 20% of his sentence he would get a reduction of 40 days. He has 113 days left to serve which would leave him about 70 days. I don't know when he was sentenced, but if it was recent, 70 days would put him out in January 2014, after the holidays. While you may be frustrated with the lawyer, it does sound like he did pretty good to get a 200 day sentence where there were a couple of MTR's. Your lawyer had to work very hard to get that deal through. Count that as a blessing as it could have been much much worse. This isn't Burger King, and you don't always get it your way.
Now, lets say he is really entitled to the diligent participation credit. He only has about 113 days in which to diligently participate assuming he transferred to the State Jail Facility the day he was sentenced. In addition credit is not mandatory. From the TDCJ web page we see:
"This bill is intended to provide an incentive for offenders to be active in rehabilitation while providing a management tool for security staff. The TDCJ will provide a progress report to the sentencing judge(s), which will include information such as name, date of birth, offense, sentence begin date, current discharge date, and diligent participation days. The sentencing judge(s) may credit up to 20% of the offender’s sentence for days served as long as the offender was diligently participating in a program and not subject to disciplinary action. The judge is not required to give credit for each or any day of diligent participation. The diligent participation credit, if any, shall be submitted by the sentencing judge to the TDCJ. The TDCJ shall recalculate the maximum discharge date and send notification to the offender."
Notice where it states the judge is "not required" to give the credit. In Texas, looking at parole or other early release options on the discharge of a sentence is hopeful at best, and impossible to predict. The sentence is the best method in which to obtain a certain release date. It appears that your husband received the benefit of substantial negotiations and skilled lawyering to receive a sentence of only 200 days. While you may be frustrated, you can still be very very thankful for his ability to get such a deal through where he had prior MTR's on a five year probation. I hope I helped you feel better about this. With Kindest Regards, and my best wishes for your upcoming holiday season.
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I agree with both my colleagues. Your husband is very fortunate not to have received the max. State Jail inmates sentenced through the Bexar County Courts sign paperwork acknowledging that State Jail time is day for day with no credit for good time behavior. So, I have a hard time believing that your husband was not made aware of the fact that he was likely to do the entire sentence. Even so, though, as my colleagues pointed out, if it were as your husband's attorney believed and he receives 20% credit, it would not get your husband home for the holidays. The best thing your husband can do for himself at this point is to actively participate in any offered rehabilitation programs while in State Jail and stay out of trouble. The decision to release an inmate early is entirely up to the discretion of the prison system and making sure one puts themself in the best position possible should the opportunity arise is all one can do.
This answer is for informational and educational use only. This answer does not create attorney-client relationship. For more details, I recommend a private consultation with a criminal defense attorney.