All Class B misdemeanors and above in Texas carry possible jail sentences. Even where people are convicted or plead guilty, however, probation is often an option. No attorney can guarantee you a certain result with getting on probation (or community supervision as it’s known). Calculating probation eligibility can be complicated to figure out.
For a quick reference, probation eligibility and deferred adjudication eligibility are governed by Tex.Code.Crim.P. 42.12.
A judge can place any person on community supervision (probation) for a misdemeanor offense regardless of criminal history. This includes DWI (1st and 2nd), theft below $1,500, possession of marijuana (under 4 oz.), and assault causing bodily injury. This can be done during a guilty plea or at trial — by selecting the judge over the jury for punishment. For a jury to give community supervision during a trial, for a misdemeanor or a felony, the defendant must file prior to the trial, a sworn application stating they have not been convicted of a felony offense in Texas or any other state.
Felony offenses where a judge cannot give probation include (but aren’t limited to): capital murder, murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, aggravated robbery, first-degree injury to a child or elderly person and certain drug offenses in drug-free school zones where there has been a prior similar record. Upon conviction juries also cannot make a binding recommendation for probation on some, but not all, of these offenses. This means on some offenses, a jury can give you probation where the judge cannot.
Whether or not people are eligible for deferred adjudication for some of these offenses is a different matter. Deferred adjudication is a different form of community supervision. To get deferred on anything, the defendant must plead guilty. This article is mainly geared at persons that have a trial on the merits.
Judges can order jail time as a “term and condition” of community supervision (typically called T & C time) which means that the individual must complete the a jail sentence to be allowed to proceed on community supervision. Those times are not to exceed 30 days in a misdemeanor or 180 days in a felony.
It is extremely important to note that in felony offenses, eligibility for probation and/or deferred can be very complex and complicated. It is always best to consult an attorney about specific circumstances.
Jeremy F. Rosenthal, Esq.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice you should specifically consult an attorney.