Now that the Harris County, Texas DIVERT program is over a year old it is evident that it is here to stay unless the legislature decides to change the law. The program has changed the way a DWI lawyer handles a case. As in every case communicating with your client is key. When discussing DIVERT with my clients a lot of questions come up even before they take the SALCE evaluation that is required to seek entry into the program. I have found it most helpful to my clients if they can see a sample DIVERT so they clearly see what is expected of them. The following is a sample contract:
EXHIBIT A
NO. XXXXXXX
THE STATE OF TEXAS § IN THE COUNTY CRIMINAL COURT
VS. § AT LAW NUMBER ______
XXXXXXX§ OF HARRIS COUNTY, TEXAS
SPN: XXXXXXX
AGREEMENT FOR HARRIS COUNTY DISTRICT ATTORNEY'S DIVERT PRETRIAL INTERVENTION
Parties
The State of Texas is represented by the undersigned assistant district attorney of Harris County, Texas.
XXXXXXX is represented by
HERMAN MARTINEZ
, Attorney at Law.
Intention of the Parties
The District Attorney of Harris County, Texas believes that justice and the future safety of the public are best accomplished by halting the prosecution of this case and providing Defendant with an opportunity to accept responsibility for his or her actions by satisfactorily making whole the victim, and the community at-large, after which time this charge will be dismissed and subject to future expunction.
Defendant desires to accept responsibility for his or her arrest-related conduct, make restitution to the victim and the Harris County community, demonstrate behavior change and self-learning related to drinking and driving, conduct himself or herself in accordance with the laws of the State of Texas, and seek expunction of the records in this case in the manner agreed to by the prosecutor.
Terms
The following terms have the meaning set forth below.
5.01
Defendant
means the defendant in this case.
5.02
Attorney of Record
means the attorney representing the defendant according to the records of the court.
5.03
Prosecutor
means an Assistant District Attorney of Harris County, Texas.
5.04
Department
means the Harris County Community Supervision and Corrections Department.
5.05
Community Supervision Officer
means a supervision officer employed by the Harris County Community Supervision and Corrections Department.
Term of DIVERT Pretrial Intervention.
The DIVERT Pretrial Intervention begins on _________________
and ends on ___________________
, unless:
6.01 Defendant's conduct causes the DIVERT Pretrial Intervention to terminate as stated by this Agreement; or
6.02 The Parties agree otherwise in a writing which is signed by both parties.
Representation of Defendant
My name is XXXXXXX
. This is my true name, and I have never used or been known by any other name.
a. I am a citizen of the United States of America_______________ (Defendant initials if applicable); or
b. I am an Alien lawfully in this country under the Visa Waiver Program (
VWP
) / pursuant to an Immigrant / Non immigrant Visa, category ________________number______________________ that expires on the _____ day of ________________, 20____, a copy of which is attached to this Agreement._______________ (Defendant initials if applicable)
My status expires on the _______ day of _______________________, 20______. (Defendant Initials if applicable)
I am a Texas resident, or I am in compliance with the immigration laws of the United States of America, _______ (Defendant initials if applicable) and my principal residence is within the State of Texas, namely, (street, city, state, zip)
_________________________________________________________________________________________________.
I am not currently under indictment or charged by complaint or information with a felony, or a misdemeanor for which the punishment is confinement in jail or the penitentiary, other than in this case. If I do have a charge pending, I will sign a waiver of the statute of limitations regarding that charge and the charge must be dismissed, with the approval of the chief or deputy chief of misdemeanor, prior to entering this agreement.
I have never been arrested for an offense punishable by confinement in a county jail, state penitentiary, or federal, other than in this case. If I have been arrested for a previous offense, I have notified the Harris County District Attorney's Office in writing and have been provided an exception.
I have never been arrested, charged, or adjudicated delinquent in a juvenile proceeding nor have I participated in a juvenile probation or any juvenile diversion program.
If I have been arrested for a previous offense, I have notified the Harris County District Attorney's Office in writing and have been provided an exception.
I am entering this Agreement voluntarily, and only after my attorney has explained it to me, and answered my questions, if any.
Payment of Fees and/or Costs. (Please initial by each condition indicating that you have read and understand each condition
after discussing each with your attorney
)
______ 14.01 I agree to pay the following sums during the term of my diversion as set forth below:
______ 14.02
Monthly Supervision Fee.
A monthly supervision fee of $60
payable to the Harris County Community Supervision and Corrections Department during each month I participate in the diversion program. This fee is due on your first reporting with your assigned community supervision officer.
______ 14.03
District Attorney's Office Fee. A one-time payment of $160 to be paid along with my first $60 monthly supervision fee referenced in 14.01 above. The fee is due no later than 60 days from the date this agreement is signed, to reimburse the Harris County District Attorney's Office for the cost of personnel dedicated solely to support implementation of this Agreement. This fee is due on your first reporting with your assigned community supervision officer.
______ 14.04
Testing and
Monitoring Equipment.
The monthly cost of leasing an ignition interlock device, at-home breath testing device, or similar equipment, and electronic monitoring equipment from any vendor on the list of approved vendors beginning not later than 7 days after the date this agreement is signed, and every month thereafter until permitted to remove the device. The installation cost of an ignition interlock system is at least $59 and the leasing cost of an ignition interlock system is $59 per month.
______ 14.05
Counseling, Treatment, Education.
All programming costs and fees listed in my proposed plan, and any additional costs for similar services that may be indicated based upon my behavior or additional evaluations.
______ 14.06
Urinalysis.
The cost of analyzing a urine specimen.
Current cost at least $5 per month.
______ 14.07
Identification Card.
Pay the fee for a Department-issued identification card.
Current cost at least $12.50.
______ 14.08
Literacy Assessment.
Pay the cost of administering and scoring a literacy test.
______ 14.09
Counsel.
The cost for appointed counsel, if unrepresented.
______ 14.10
Restitution.
Before the conclusion of DIVERT pretrial intervention, I will pay any and all restitution that may be required.
Program Conditions.
(Please initial by each condition indicating that you have read and understand each condition after discussing each with your attorney)
______ 15.01 I agree to the following conditions of HCDA's DIVERT Pretrial Intervention:
______ 15.02
Material Misrepresentation
. I will be truthful in my responses to questions asked by any individual related to my participation in this program. And, if I have misrepresented a fact, or circumstance in this Agreement, or if during the period this Agreement is in effect I misrepresent a fact, or circumstance that could have affected, or could affect the outcome of this Agreement, the prosecutor will file a motion asking the court to continue my plea proceeding, find me guilty, and assess our agreed upon punishment.
______ 15.03
Regular Reporting.
I will report to the Department as directed by the Prosecutor or my Community Supervision Officer.
______ 15.04
Cancellation or Rescheduling Appointments.
I will contact my community corrections officer as soon as I know I will not be on time for my appointment, and I agree to appear for my appointment the following business day.
______ 15.05
Attend Orientation.
Attend the DIVERT Pretrial Intervention Orientation Meeting on the fourth Thursday of the Month at 6pm on the 20
th
floor of the Harris County Criminal Justice Center
, located at 1201 Franklin, Houston, Texas, in the Ceremonial Courtroom,
except during the months of November and December when the Orientation Meeting will take place during the third Thursday of the month due to the holiday season
.
I will attend the first available DIVERT Pretrial Intervention Orientation after having signed the agreement, unless approved by the DIVERT Program.
______ 15.06
Follow The Law.
I will follow the laws of this state, any other State, the United States, and any political subdivision of these jurisdictions during this diversion period, and will immediately inform my Community Supervision Officer in writing if I am arrested or charged with an offense including a traffic violation.
______ 15.07
Appear in Court.
I will appear in this court as directed by the court or by the Department. Notice of my appearance date may be mailed to me at the above home address unless I have given written notice of a new home address to the Department, in which event written notice to the new address shall be sufficient. If I do not appear in this court as directed I understand a warrant will be issued for my arrest.
______ 15.08
Changing Jobs or Changing Home Address.
I will notify my Community Supervision Officer in writing within 3 days of changing my place of employment, or residence.
______ 15.09
No Alcohol, Drugs or Controlled Substances.
I will not use, possess, or consume any controlled substance, dangerous drug, marijuana, prescription drug not lawfully prescribed to me, or introduce any form of alcohol into my body. I will not use any synthetic drugs or adulterants that may have an impact on the results of a drug test.
No over the counter or prescription medications containing alcohol will be permitted.
______ 15.10
No Alcohol Premises.
I will not enter, remain, or be present on the premises of any place where alcoholic beverages are primarily sold, except for the purposes of employment with the permission of my community supervision officer.
______ 15.11
Friends and Acquaintances.
I will not associate with persons charged with a misdemeanor or felony; persons on probation or parole; or visit persons housed in any county jail, state jail, or penitentiary in this state or any other state, unless such association is the result of my participation as a condition of the DIVERT Pretrial Intervention.
______15.12
Limited Travel.
I will remain within the State of Texas, and return to my home as provided by this agreement, unless I receive prior permission from my Community Supervision Officer. If I am not in full compliance with the terms and conditions of this agreement then my travel within the State of Texas may be further restricted by my Community Supervision Officer.
______ 15.13
Travel Permit.
I will request a travel permit from my Community Supervision Officer not less than 48 hours before my planned travel outside of the State of Texas, and I understand that I may not travel outside of the State of Texas without written approval. I may be required to submit to hair follicle testing or obtain a patch if I am granted permission to travel, depending on the length and location of my planned travel.
______ 15.14
Fingerprint and Photo.
I will submit myself to be photographed and fingerprinted by a representative of the Harris County Community Supervision and Corrections Department as directed.
______ 15.15
Urine Specimen.
Submit to random urine specimen analysis tests at the request of the Community Supervision Officer; prior to submitting a specimen, submit proof of any medication prescribed for me in the form of a prescription bottle, copy of a prescription, or medical chart entry; allow the Community Supervision Officer to search my person; and observe me submit my specimen.
______ 15.16
Take a Breath or Blood Test or any other Test for Alcohol or Controlled Substances.
Submit to a breath test, blood test, or any other test for alcohol or controlled substances, at the request of a Texas Peace Officer or as directed by Community Supervision Officer, including tests with an interlock device, and any test scheduled for a particular time. Should my ignition interlock device or portable breath testing device reflect a warning or violation, I must provide a subsequent breath test to confirm I have not consumed alcohol. I will provide a written explanation within 7 days of receiving the warning or violation to my Community Supervision Officer. I understand that failure to do so may result in removal from the DIVERT Program.
______ 15.17
Driver's License and Insurance.
Once my Texas driver's license is no longer suspended, I will possess a valid Texas driver's license and
current
proof of financial responsibility within seven days of the end of my suspension. I will not operate a motor vehicle without possessing a valid Texas driver's license or an occupational license.
______ 15.18
Perform Community Service.
I will complete a total of 16 hours of community service at the rate of 4 hours per month beginning no later than 45 days from today at a location approved by the Department and designated by my Community Supervision Officer.
______ 15.19
Literacy Assessment.
If directed by my Community Supervision Officer, I will submit to an evaluation of my
educational skill level
. If it is determined that I have not attained the average skill of students who have completed the sixth grade in public schools in this State, I shall participate in a program that teaches functionally illiterate persons to read. If I am non - English speaking, I will participate in
English
as a Second Language (ESL) Program
until I reach a corresponding level. I will comply with all program rules, regulations and guidelines until successfully discharged or released by further order of the Court. On each reporting date, I will submit written verification of my enrollment, attendance and/or successful completion of the program.
______ 15.20
Alcohol and Drug Evaluation.
If directed by my Community Supervision Officer, I will submit to an alcohol/drug evaluation administered by the community supervision department. If indicated by test results, enroll and successfully complete Treatment Alternative to Incarceration Program (TAIP) any class as directed to do so by my supervision officer.
______ 15.21
Counseling.
If directed by my Community Supervision Officer, I will attend counseling for alcohol, drug, and co-occurring mental health conditions as necessity is indicated by program test results or as deemed necessary by my Community Supervision Officer, DIVERT Assessment officer, or treatment provider. Additional counseling may include Intensive Outpatient Treatment, Supportive Outpatient Treatment, or AA meetings. I understand that I may be required to attend additional counseling. If I was under 25 at the time of the offense, I will be required to enroll and successfully complete the Alive at 25 Course as directed to do so by my Community Supervision Officer. This program must be completed no later than the 6th month of my diversion term. The cost of the course is at least $50.
______ 15.22
Support My Dependents
. Pay child support, and alimony, if any, as ordered by a court of competent jurisdiction.
______ 15.23
Pay Restitution Fines, Fees, and Costs
. Pay any fines, fees, costs, or other amounts owed to The State of Texas, or any county, municipality, or political subdivision of this State. Before the conclusion of DIVERT pretrial intervention, I will pay any and all restitution that may be required.
______ 15.24
Curfew.
If directed by my Community Supervision Officer
, I may be required to
remain in my residence each night from 10 p.m. until 5 a.m. Sunday through Saturday unless an addendum to this Agreement provides an exception.
______
15.
25
DIVERT Education Course.
I will enroll and successfully complete the DIVERT Education Course as directed to do so by my Community Supervision Officer.
The cost of the course is at least $60. Must be completed no later than the 6th month of my diversion term.
______
15.26
Ignition Interlock Device
. Within 7 days from today I will have installed on my personal automobile, an ignition interlock device
with a camera
that shall remain on said vehicle(s) for at least 6 months, or until I am otherwise instructed by my Community Supervision Officer. If my license is currently suspended and I do not have a current occupational license or I do not drive a personal automobile or if ordered by my Community Supervision Officer, I will have a portable
breath testing device, or
Secure Continuous Remote Alcohol Monitoring (SCRAM) device installed not
later than 7 days after the date this agreement is signed, and every month thereafter until permitted to remove the device.
The
cost of a SCRAM device is at least $435 per month, which may be paid in installments over the first year of the program. The leasing cost of an ignition interlock system is $59-$80 per month. The leasing cost of a portable testing device may cost $59-$80 per month.
I understand that I must take any verification test as requested by my Interlock vendor and install any unit(s) as instructed by my Community Supervision Officer.
______ 15.27 Alcoholics Anonymous (AA) Meetings I will attend AA meetings twice a week starting 3 days from today until I have started attending Intensive Outpatient Treatment or Supportive Outpatient Treatment. I will maintain a log of my attendance. At the first face to face meeting with my Community Supervision Officer, I will provide a copy of my attendance log. I will attend even if I have not yet been assigned a Community Supervision Officer or attended DIVERT Orientation.
______ 15.28 DIVERT Supportive Outpatient Treatment. I will enroll and successfully complete the DIVERT Supportive Outpatient treatment program, as directed to do so by my Community Supervision Officer. This program requires my attendance twice a week for at least 90 days, unless otherwise directed by my Community Supervision Officer. The cost of Supportive Outpatient Treatment is at least $11 per hour. I will enroll in Supportive Outpatient Treatment no later than 30 days from today, at a location approved by the Department and designated by my Community Supervision Officer.
Conduct Resulting in Termination of DIVERT Pretrial Intervention.
(Please initial by each condition indicating that you have read and understand each condition after discussing each with your attorney)
______ 16.01 I agree that if, during the term of my diversion, I engage in any of the conduct listed in this paragraph the district attorney will have sufficient cause to file a request asking the judge to find I violated this agreement and immediately proceed to adjudicate my guilt and assess punishment.
______ 16.02 I committed a Class "B," Class "A" misdemeanor, or felony offense;
______ 16.03 I operated a motor vehicle on which an ignition interlock device
was not installed unless specifically permitted to do so in an addendum to this agreement, or the conditions of diversion;
______ 16.04 The results of a urinalysis or alcohol breath test or any other test for alcohol or controlled substances reflect that I ingested either alcohol, or a drug for which prior written authorization was not received;
______ 16.05 I refused to allow a Community Supervision Officer either alone or accompanied by a peace officer of the State of Texas to visit me at my place of employment, training or education, or in my home;
______ 16.06 I failed to appear in court after receiving notice from the court to be present on a specific date, time, and place;
______ 16.07 I failed to participate in, or successfully complete a program or condition listed in this Agreement, or the conditions of diversion;
______ 16.08 I willfully refuse to pay restitution, a program or service fee, or cost when I have the financial ability to do so.
______ 16.09 I chose to work or move to another county, state, territory, or foreign county in violation of the terms of this Agreement.
Incentives.
(Please initial by each condition indicating that you have read and understand each condition after discussing each with your attorney)
_____ 17.01 I agree that complying with this Agreement and the conditions of my diversion will entitle me to a reduction in my level of supervision and allow me to more fully participate in lawful activities with family, friends, co-workers, and others.
_____
17.02 Categories 1 and 2.
Those falling into this SALCE category will have an initial supervision period of 12 to 18 months.
17.021 If I appear on time for all my scheduled meetings, appointments and activities during the first 90 days of DIVERT Pretrial Intervention, the state will request the judge permit me to substitute a personal bond for the surety bond or cash bond in the court's file, and order the district clerk to return the cash bond funds, or enter an order releasing the bail bondsman from liability on his bond;
17.022 If, after 3months, I have complied with the terms of my electronic monitoring and/or home curfew, the prosecutor will reduce or eliminate the curfew period;
17.023 If, after 6 months continuous use, my ignition interlock activity log reflects I have not attempted to drive with alcohol in my system, or during hours when I was required to remain at home,
and I am currently compliant with all conditions of the agreement, the prosecutor will agree to removal of the device from my vehicle;
17.024 If, after 6 months, the results of random testing for alcohol and drugs are consistently negative, the prosecutor will consider modifying this provision of the Agreement;
17.025 If, after 6 months, I have successfully complied with all the conditions of my Agreement, the prosecutor will agree to allow me to report to my Community Supervision Officer by mail (meaning that once mail-in reporting is instituted, I will be permitted to mail my monthly report to my Community Supervision Officer for the 1
st
and 2
nd
months I am on mail-in status and that I will report in person the 3
rd
month. If in compliance, I will be allowed to repeat this reporting pattern for the next 3 months and so on thereafter unless instructed otherwise by my Community Supervision Officer).
_____
17.03 Categories 3, 4, and 5.
Those falling into this SALCE category will have an initial supervision period of 12 to 24 months.
17.031 If I appear on time for all my scheduled meetings, appointments and activities during the first 90 days of DIVERT Pretrial Intervention, the state will request the judge permit me to substitute a personal bond for the surety bond or cash bond in the court's file, and order the district clerk to return the cash bond funds, or enter an order releasing the bail bondsman from liability on his bond;
17.032 If, after 6 months, the results of random testing for alcohol and drugs are consistently negative, the prosecutor will consider modifying this provision of the Agreement;
17.033 If, after 6 months, I have complied with the terms of my electronic monitoring and/or home curfew, the prosecutor will reduce or eliminate the curfew period;
17.034 If, after 9 or more months, I have successfully complied with all the conditions of my Agreement, the prosecutor will agree to allow me to report to my Community Supervision Officer by mail (meaning that once mail-in reporting is instituted, I will be permitted to mail my monthly report to my Community Supervision Officer for the 1
st
and 2
nd
months I am on mail-in status and that I will report in person the 3
rd
month. If in compliance, I will be allowed to repeat this reporting pattern for the next 3 months and so on thereafter unless instructed otherwise by my Community Supervision Officer).
17.35 If, after 12 months continuous use, my ignition interlock activity log reflects I have not attempted to drive with alcohol in my system, or during hours when I was required to remain at home, the prosecutor will agree to removal of the device from my vehicle;
Representations of the Harris County District Attorney
In consideration of the foregoing representations of Defendant, the prosecutor agrees that if, at the conclusion of the period of diversion, she believes Defendant is in compliance with this agreement she will move to dismiss the above entitled and numbered cause on or before the date contained in the Court's order resetting this case from today.
The Prosecutor, further agrees not to oppose a valid petition for expunction provided that, during the two years following dismissal of this cause, (1) Defendant commits no offense other than a fine-only traffic violation, and (2) does not file a petition for relief under Chapter 55, Texas Code of Criminal Procedure.
The defendant further acknowledges and agrees that in the event that he does obtain an expunction order related to this case, the District Attorney is authorized pursuant to this agreement to retain the defendant's name, date-of-birth, Harris County SPN, date of offense, name of offense and the date of filing of the pre-trial intervention agreement. The defendant affirmatively waives his right to seek expunction of his name, date-of-birth, Harris County SPN, date of offense, offense, and the date of the filing of the pre-trial intervention agreement. The defendant agrees that the District Attorney can retain this information pursuant to this agreement regardless of whether an expunction order expressly discusses the information. The District Attorney agrees to maintain this retained information related to defendant's pre-trial intervention in a confidential and secure database that is not to be released to third parties.
If the Prosecutor believes Defendant violated this Agreement, she shall file a Motion to Enforce Pretrial Intervention and Enter Plea of Guilty.
20.01 The Motion will contain sufficient facts to inform Defendant and defense counsel of the reason the notice is filed.
20.02 The Motion will be filed with the clerk of the court not more than 21 days after receipt of the Violation Report.
20.03 A copy of the Motion will be mailed, faxed, hand-delivered, and/or e-mailed to the defendant's attorney of record.
20.04 Notice to the defendant's attorney of record or bonding company shall be deemed sufficient for purposes of service. If the defendant fails to appear when notified to appear when instructed by the Court Coordinator of the court in which this case is pending, his bonding company, or his attorney of record, the Court will issue an arrest warrant.
Amendment of this Agreement
Amendments to this Agreement must be in writing, signed by Defendant, Defense Counsel, and a Prosecutor.
Disclaimer
The defendant acknowledges that he may not be eligible for an expunction upon the completion of this agreement and the dismissal of this case. The defendant agrees that this case will be controlled by the terms of the Code of Criminal Procedure, article 55.01, and, if he is eligible under the terms of that statute for expunction, he will not seek expunction of his criminal record for two years from the date that he successfully completes this diversion and the case is dismissed from the docket of this court.
Signatures
I, XXXXXXX
, Defendant herein, swear or affirm that I have reviewed this Agreement with my attorney who has explained it to me in terms that I understand, and that my statements in paragraphs 7 through 13 are true and correct and that this Agreement represents the total agreement between me and the State of Texas.
___________________________________________
Defendant
SUBSCRIBED AND SWORN TO before me this ______ day of ________________________.
Seal_____________________________ ___________________________________________
Person Administering Oath
I have read and explained this Agreement to the defendant, and I am satisfied that the defendant understands the contents and is voluntarily and knowingly entering into it in good faith.
___________________________________________
Attorney for Defendant (Signature)
_ .