Probation Conditions

November 22, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

texasdefensefirm.com

When you’re on probation in Texas, you are given a host of “terms and conditions” of probation (otherwise more formally known as “community supervision.”).  Those terms and conditions comprise the laundry list of everything you’re responsible for doing (or not doing as the case may be.)

Common examples of terms and conditions of probation are community service hours and paying off costs and fines.  Usually the nature of the underlying case is reflected in some of the probation requirements.  For example, in a theft case the prosecutor may recommend an anti-theft class and prohibition from entry into a store where the theft occurred.

For DWI probation, the legislature has made several requirements which must be completed.  Examples are attending a victim impact panel and going to a DWI class.  Recently the legislature has added provisions for drunk driving probation depending on the blood alcohol level of persons arrested.  In cases where the blood or breath test is over a 0.15, a deep lung device must be installed on the vehicle for at least 1/2 of the probation period.

Drug offenders are generally required to give random urinalyses and it is not uncommon for probation on drug and alcohol cases to be fairly intensive.  In some extreme cases (felonies), the Judge can order a person to go to county or state-run in-patient rehabilitation which can take upwards of a year to complete.  Even though the program is essentially prison — it is done as a “pre-requisite” of probation.

It is a safe assumption that a violation of the laws of the State of Texas or any other state can trigger a revocation.

A probation officer does not determine whether you have violated your probation (regardless of what they tell you).  They do have a lot of power, however, in a revocation proceeding.  Usually it is the probation officer that can trigger the violation to be heard by a judge by suggesting the prosecutor file a “motion to revoke” or “motion to adjudicate” in deferred adjudication cases.  The judge determines whether there has been a violation and it is a much lower standard of proof than would normally be at trial.

*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 specific legal advice about any situation you should always contact an attorney directly.

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Probation Eligibility in Texas

April 11, 2010

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.

(972) 562-7549

*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.

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