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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Probation FAQ’s

March 29, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

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 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 for any situation, you should consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

What is the Punishment for a First DWI Offense in Texas?

March 23, 2010

All the hype and rhetoric over DWI enforcement in Texas causes people who get arrested to have the expectation of a very harsh punishment — like a felony conviction, having their arm lopped off, or a bright orange DD tattooed on their forehead.

DWI punishment isn’t a walk in the park, but it’s not quite that bad.

A first offense is a class b misdemeanor — which is in the middle of the misdemeanor range.  It’s punishable by a minimum confinement of 72 hours jail and/or a $2,000 fine.  While no lawyer can guarantee you any particular result, statistically the vast majority of convictions on first DWI arrests result in probation.  This means that any jail time assessed may be put off while you complete community service and various other tasks such as a victim impact panel.  There is no deferred adjudication for DWI cases in Texas on any level.

Also if you’re convicted of DWI in Texas for a first offense — you will be assessed a surcharge for three years to retain your driver’s license of $1,000.00.  If you have a breath test result of above a 0.15, then the surcharge is bumped to $1,500 per year.

What I’ve been describing so far are the criminal aspects of a DWI.  The driver’s license suspension for a breath test refusal is a separate, civil matter, but is usually handled in conjunction with your DWI defense.

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 consult an attorney directly.

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