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 F. Rosenthal is an attorney licensed in Texas.  Nothing in this article is intended to be legal advice.  For legal advice you should specifically consult an attorney.

Probation FAQ’s

March 29, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Probation (technically called community supervision), is where the Judge suspends all or part of the sentence in a case for a certain period of time.  In the probationary period, the person typically completes community service and other requirements such as classes or drug testing.

A person on probation in Texas must complete and abide by “terms and conditions” of probation.  Typically a person cannot commit an offense against the State of Texas or any other state as a minimum.  Other requirements range from requiring the defendant to report changes in address, changes in employment, and new arrests, if any.

Difference between Deferred and Probation

Deferred adjudication is where you have not been convicted.  Probation is where you have been convicted for the offense.  While on deferred, you must still complete community supervision as if you were on regular probation for most offenses.  The terms can be used interchangeably, but they’re not really identical.

Probation Eligibility

If you’ve never been convicted of a felony in Texas or any other state you are usually eligible for probation. Convicted felons are tricky and it is best to consult a lawyer about your specific situation.  Prosecutors have differing policies against offering probation for certain offenses such as drug trafficking, robbery, and crimes against children.

Can I have Probation Records Expunged?

No.  Expunctions for cases above class C misdemeanors require acquittal or another legal bar to prosecution.  You may be eligible for a petition for non-disclosure, however.

Is there Probation for Federal Offenses?

Yes, but it is likely that if you get probation in Federal Court that you will still serve jail at some point.  There is no parole in Federal prison so almost the only way you can be released from prison without serving all of it is to serve part of it on probation.

Can I be Released from Probation Early?

Yes, you are generally eligible for early release in Texas state courts for probation 1/3 of the way through probation and if  you’ve completed every requirement.  There is no early release for DWI offenses, certain drug offenses, and sex crimes.

Can I do Rehab Instead of Probation for Drug Crimes?

It depends on the case and the willingness of the prosecuting attorney to all an arrangement like this.  More often than not, a prosecutor or Judge may include the rehab as part of probation but not necessarily replacing probation altogether.  This is the type of deal an experienced attorney may help you reach with the prosecutor.

What if I don’t Like my Probation Officer?

Do your best to get along with them even if that means swallowing your pride.  They hold the keys to your jail cell.  In their defense, probation officers have a very difficult job.  The better you get along with them, the more they appreciate you… but they can be extremely damaging to your case if they think you’re a problem.  If they become verbally abusive or play games you may consider involving an attorney though getting a different probation officer can be difficult.

Probation Violations

If you violate probation, your probation officer can cause a probation revocation proceeding (or an adjudication proceeding if you are on deferred) to occur.  You’d be re-arrested and the only issue before the Court is whether you violated your deferred or probation.  If the state proves even one violation more than a preponderance of the evidence, the judge can convict you of the deferred, or revoke your probation.  If this is done, you may be required to serve all or part of the underlying jail sentence.  Often on revocations, however, the judge may extend probation or take some lesser action.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice for any situation, you should consult an attorney.