By Collin County Criminal Defense Lawyer Jeremy Rosenthal
“Shock Probation” allows a trial judge to convert a prison sentence into probation. This can be after a plea bargain, a bench trial, or a jury trial where the Defendant is sentenced to prison.
Texas Code of Criminal Procedure Section 42.12(6)(a) allows the trial court to retain jurisdiction “for 180 days from the date the execution of the sentence actually begins” and the judge can place the defendant on probation if the defendant is otherwise eligible. These do not apply to State Jail Felonies, however, other probation programs apply to those charges.
In other words, the defendant must still (1) be sentenced to less than 10 years of prison and (2) not have been convicted of a felony in this state or any other State. The Judge cannot grant shock probation where the Judge couldn’t otherwise — meaning “3(g) offenses” such as murder, aggravated robbery, aggravated assault, aggravated sexual assault of a child, indecency with a child, or injury to a child to name just a few.
So here is how it works… after someone is sentenced (for example after a jury trial), the lawyer files a motion for shock probation under 42.12(6)(a). The judge can deny the motion without a hearing but cannot grant the motion without a hearing. The Judge must grant the request within 180 days of the date the execution of the sentence actually beings or it would be over-ruled as a matter of law.
Shock probation and an appeal are not mutually exclusive and both can be done.
A motion for shock probation is a great “second bite at the apple” and should be considered where a trial or plea bargain went wrong.
*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 should be considered legal advice. For legal advice about any situation you should contact an attorney directly.