By Jennifer Emily
The Dallas Morning News
DALLAS COUNTY, Texas — Dallas County judges have ordered an extensive review of felony cases after discovering that probation officers failed to report probationers violating repeated drug and alcohol tests.
The audit is designed to tell the extent of the breakdown and whether potentially dangerous criminals have remained free instead of facing probation revocation.
“This is a failure of supervision in the field. It’s extremely dangerous for Dallas County,” said state District Judge Tracy Holmes.
Holmes’ concerns already have triggered an overhaul and staffing changes in the county probation department.
The decision to have an outside agency examine current probation files also signals courthouse efforts to move quickly to uncover cases that could pose a risk to the public.
The probation department chief acknowledged the errors.
“Regardless of the number, the quality of the supervision was indeed unacceptable,” said its director, Michael Noyes.
Holmes began questioning probation practices after finding 34 cases in which the department didn’t tell her probationers had been repeatedly drinking or using drugs in violation of their sentences.
She was most outraged to learn about the case of a drunken driver who, over 18 months, saw at least eight probation officers. He tested positive for alcohol more than 30 times, but she was never told.
Probation officers usually are expected to report serious probation violations. The judges then can change terms of the probation or revoke it and order the probationers to prison.
Dallas defense attorney Bill Knox, who handles probation violation cases, said major lapses in reporting are rare but must be taken seriously.
“It has the potential to be ugly,” he said, if probationers who fail drug and alcohol tests “drive and kill someone and they missed the warning signs.”
Drug use
Holmes highlighted cases that included those on probation for aggravated robbery with a deadly weapon, aggravated assault and drunken driving. They tested positive for a wide array of drug use, including cocaine, PCP and amphetamines. But the judge never knew.
Tests showed one man convicted of aggravated robbery even increased his drug use on probation.
Noyes, the probation director, said he believes the problem cases in Holmes’ court are slightly fewer. But he said mistakes were made and the judge should have been told sooner about violations.
“The failed [urine analysis] and the positive alcohol monitor reports should have been reported in a more immediate and timely fashion,” he said.
With 450 probation officers and supervisors in charge of 50,000 probationers, the caseload is high. But Noyes said that doesn’t excuse the “system failures.”
The probation department already has shuffled its staffing, including reprimands, a firing, more training and more personnel.
Holmes is reviewing all 1,500 probationers in her court. The independent audit will sample a percentage of probation files from all courts.
Judges would use the results to consider developing uniform rules on when probation officers are required to report infractions. Now, each court has its own policy.
No incentive to quit
Holmes said she fears judges sometimes aren’t notified of violations unless probationers are charged with a new crime.
Probationers can receive reprimands from probation officers, but without a judge’s intervention, probationers have no real incentive to stop using drugs or drinking. Only a judge can put a probationer in prison.
Holmes said she had an inkling of a larger issue for months. Then, she discovered Richard Lee Barrett’s case, which she said “got my blood boiling.”
Since June 2008, he was on probation for his third DWI, a felony. He initially was successful in Holmes’ heavily supervised DWI program, which requires regular meetings with probation officers and judges.
Then Barrett went into regular probation, with less supervision. But he began drinking and taking hydrocodone, according to court records — all with the knowledge of his probation officers, who didn’t tell Holmes, she said.
And, Noyes said, “that was egregious. That was a failing on our part.”
Among the problems:
Barrett saw at least eight probation officers in 18 months, Holmes said. In a July hearing in which she revoked his probation, testimony showed that none appeared to have read his complete file before meeting with him.
None of those probation officers was aware of a letter in the file from Holmes to Barrett’s doctor stating he was not allowed to take hydrocodone, even with a prescription. Barrett could not be sober while taking the narcotic, Holmes told the doctor.
But probation officers repeatedly allowed him to continue taking the drug. One probation officer testified that a supervisor signed off on the hydrocodone because he had a prescription.
Between November 2011 and April 2013, Barrett — who isn’t allowed to drink — tested positive for alcohol more than 30 times. One breath test registered his level as high as 0.102 at 7 a.m. The legal limit to drive is 0.08.
Dallas County prosecutor Elaine Evans said at the hearing that “the probation department completely and totally failed him.” But ultimately, she said, Barrett “knew full well” what he shouldn’t be doing.
Barrett’s attorney, Dallas County public defender Larry Roberts, said probation officers allowed Barrett to “slip through the cracks.”
“He didn’t just slip through the cracks, he fell down the hole,” Holmes exclaimed from the bench.
Holmes revoked Barrett’s probation and sentenced him to a maximum 10 years in prison.
“You were on the mend,” she said, looking at Barrett, who hung his head. “At some point you have to take care of your own sobriety.
“I cannot risk the lives of the citizens of Dallas County.”
Other judges
State District Judge Lena Levario said even one positive alcohol test for a felony DWI probationer is too much. “They create the most danger to the public if they drink,” she said.
Levario said she has only rarely seen troubled cases like the ones Holmes found.
State District Judge Rick Magnis, the felony courts’ presiding judge, said other judges haven’t seen the kinds of slipups that Holmes has found. But they want the audit to take place to be sure.
State District Judge Jeanine Howard said, “The same thing could be happening in this court … and I’m not aware.”
Holmes already is seeing a difference. Typically, she said, prosecutors file 10 to 15 motions a month to revoke probation based on input from probation officers. In June and July, prosecutors filed 332 such motions.
Follow Jennifer Emily on Twitter at @dallascourts.
AT A GLANCE: Probation changes
The following changes are being made to ensure that judges are informed when probationers test positive repeatedly for drug or alcohol use:
At the county probation office
Firings: One employee was fired and others received written reprimands after problems were found in state District Judge Tracy Holmes’ court.
DWI specialization: Six bosses now only supervise DWI cases handled by 32 probation officers who only monitor the county’s 3,500 DWI probationers. Two additional DWI probation officers will be added in September.
Uniform reports: Companies that generate reports from alcohol test results are required to create a uniform look so they can be more easily read by probation officers.
The cost: About $150,000 budgeted for other areas was shifted to make the needed changes.
Probation officers received more training.
In the judges’ courts
Studying the problem: Judges are seeking a wide-ranging audit of probation files to determine if there are more problematic cases.
Standardization: Judges will consider creating a standard for all 17 felony courts about when probationers should be sent to court for violations. All the judges must agree on the standards, which would be based on what is found in the study. Currently, all the judges have different standards for when violations should be reported to them.