Murray Newman, in Life at the Harris County Criminal Justice Center: The Legality of D.I.V.E.R.T. writes:
The 14th Court of Appeals ruled that the Defendant was not entitled to a different judge than Judge Harmon, because Judge Harmon was correctly following the law when he refused to participate in DIVERT's pre-trial diversion program. They pointed out that Judge Harmon was, in fact, following the law and considering the full range of punishment because pre-trial diversion is not a legal form of punishment.
Here is the opinion, Rhodes v. State, to which Murray refers.
A judge in Texas must be willing to consider the full range of punishment. DIVERT, like pretrial diversion, is not within the range of punishment. If a defendant pleads guilty to a judge without an agreed recommendation, the judge can't put the defendant on pretrial diversion or on DIVERT. The only way a defendant can get one of those results is with the agreement of the state. And if the judge refuses to accept such an agreement—the position that Judge Bill Harmon takes—she's not recusable for failing to consider the full range of punishment.
Still, Murray reads way too much into Rhodes. "Not part of the range of punishment" is not the same as "not legal punishment." Whether DIVERT is legal or not is a separate question, not even approached by the Fourteenth Court of Appeals.
In DIVERT, a judge accepts a guilty plea and then withholds a finding of guilt if the defendant successfully completes certain conditions. This is not pretrial diversion. When the judge accepts a guilty plea, the trial has, by definition, begun (jeopardy has attached). DIVERT is deferred-adjudication probation, and deferred-adjudication probation is not allowed for DWI.
(One of Murray's more moronic anonymous commenters maintains, in an open letter to Big Jolly posted on Murray's blog, that people not eligible for DIVERT would get deferred-adjudication probation for DWI.)
DIVERT is deferred-adjudication probation. This makes it illegal, but it is a violation that nobody is likely to argue in the court of appeals. There is nobody to appeal the state's dismissal of a case after jeopardy attaches, even if that dismissal is contingent on the defendant's satisfaction of conditions.
"Big Jolly" David P. Jennings quotes me on the practical effect of the DIVERT program: more guilty pleas. He does so in the context of taking Mike Anderson to task. But when Anderson says that Lykos "has invented a program that ignores the intent of the legislature and essentially gives first-time drunk drivers a free pass," he is only (if you believe in degrees of dishonesty) half-untruthful. (Jennings's bluster over Anderson's "blatant lie" brings to mind his fawning over the lies Chris Daniel told during the election for District Clerk; I guess that, Jennings only objects to lies told about candidates he likes; to each his own).
DIVERT does, indeed, ignore the legislature's intent.
But DIVERT is not a free pass, any more than probation is a free pass. In fact, DIVERT is more onerous than an ordinary first-time DWI probation. While DIVERT appears to cause some people who would otherwise fight their cases (and get dismissals, or acquittals, or maybe convictions) to plead guilty, people don't choose DIVERT because they want to get off easy. They choose DIVERT in hopes that they can someday get their DWIs expunged from their records.
An agreed expunction requires the agreement not only of the Harris County DA (who currently takes the position that DIVERT is legal and can be expunged) and the defendant (who will never oppose it), but also of the lawyers for the Texas Department of Public Safety. If the DPS takes the reasonable position that DIVERT is deferred-adjudication probation, which cannot be expunged, then a civil district court judge will have to make the call.
I'm not certain that the DPS will agree that DIVERT is not deferred-adjudication probation, and I've advised my clients of that uncertainty, which has probably contributed to them not taking DIVERT (fortunately, all but one who were eligible for DIVERT and didn't take it wound up beating their cases).
The DIVERT contract provides that people taking DIVERT won't seek expunction until two years after successfully completing the program. The minimum DIVERT term is one year, so the first people won't be able to seek expunction for DIVERT until August of next year. Sometime between August and December we should finally learn whether DPS will agree to expunctions on DIVERT cases.
But if DPS agrees with the DA's Office that DIVERT is expungeable, then Anderson's comment presents another interesting twist: anyone who takes DIVERT from now until the primary may find himself in 2014 or 2015 trying to convince the Mike Anderson DA's Office that he is eligible for expunction. In fact, anyone who takes DIVERT between January and March may find himself on DIVERT in 2013 with a DA's Office that contends that DIVERT is unlawful.
Won't that be fun!