What is Probation in Texas?
Probation or “community supervision” in Texas takes two forms: 1) straight probation or 2) deferred adjudication. Community supervision consists of programs, sanctions, and conditions set forth by a court that a person has to meet as an alternative to jail or prison.
What is deferred adjudication in Texas?
Deferred adjudciation is provided for in Code of Criminal Procedure 42A.101 through 42A.111. Deferred adjudication allows you the opportunity to keep a conviction of your record. If you are charged with a felony, this may keep you out of State Jail or the State Penitentiary. If you successfully complete deferred adjudication, your case will be dismissed without a conviction on your record. Additionally, you may be eligible to have your arrest sealed through a petition for non-disclosure. You will also want to speak to your attorney about early release from deferred adjudication if you are nearing the half-way mark of the deferred adjudication period and you have not had any violations. Generally, someone may be placed on deferred for ten years for a felony but occasionally skillful defense attorneys are able to negotiate terms less than ten years in length. It is important to remember that a jury cannot place someone on deferred adjudication.
What is straight probation?
Unlike deferred adjudication, when a person is placed on straight probation, it is after a finding of guilt. Because it is a sentence that is probated, a jury may probate offenses after a trial by jury.
Can I get Probation for in Texas?
Probation is not available for sentences that are 10 years or longer. While juries are allowed to probate most offenses, judges face limitations on which offenses may and may not be probated. These limitations are set out in Code of Criminal Procedure 42.12 Section 3g and these offenses are known as “3g offenses” in Texas.
- Capital murder
- Indecency with a child
- Aggravated kidnapping
- Aggravated sexual assault
- Aggravated robbery
- Drug cases where a child is used in the commission of the offense, or the offense took place within 1,000 feet of a school or on a school bus.
- Sexual assault
- Injury to a child, elderly individual, or disabled individual, if the offense is punishable as a felony of the first degree
- Sexual performance by a child
- Criminal solicitation cases that are punishable as a felony of the first degree
- Compelling prostitution
- Trafficking of persons
What are the general conditions of probation or deferred adjudication in Texas?
The judge sets conditions of probation. The most common conditions of probation or deferred adjudication in Texas requires that a probationer:
- Not violate any other laws
- Avoid any bad conduct including use of illegal controlled substances
- Avoid bad people and places.
- Report as directed by probation office: Generally once a month
- Be subject to house inspections
- Maintain a job
- Support your dependents
- Advise probation officer of any address or job change
- Execute a waiver of extradition
- Submit to drug testing
- Pay probation supervision fees, Crime Stopper fees, and court costs
- Complete GED or obtain high school diploma
- Complete any classes required by probation officer
- Abide by limitations on travel
- Abide by a curfew
- Pay restitution, if any, to crime victim
- Complete community service
- Complete a psychological or psychiatric evaluation
In Tarrant County, felony probation officers supervise approximately 130 people in any given month. Most adult probationers are ordered to report once a month for half hour meetings. Probationers on more serious offenses might have in-home visits or inspections and field visits by probation officer.
Adjudication Proceedings and Probation Revocations
Failure to comply with any of the conditions of deferred adjudication or straight probation could result in sanctions, a petition to revoke probation or adjudicate, and ultimately a jail or penitentiary sentence. A defendant is entitled to due process and a hearing on any alleged violation of probation. This hearing is before a judge who will determine if conditions have been violated. The judge will have sole discretion to then sentence the defendant to the penitentiary or jail if a violation occurred. Unlike a trial on the merits of a case, the State only has to prove its case by a preponderance of evidence.
When a person is on deferred adjudication, the court has the entire range of punishment for the underlying offense at its disposal. For a case that is on straight probation, the judge is limited to the maximum sentence imposed at the time of the plea or finding of guilt.
The Fifth Amendment of the United States Constitution and Article 1, Section 14 of the Texas Constitution protects an accused person against being punished for the same offense twice.
No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction. Tex. Const. art. I, § 14.
Probation Revocation & Double Jeopardy
When a person violates a condition of probation by committing a new offense, the person is subject to being punished first for the probation violation and second for the new offense. This is not, however, a violation of double jeopardy. The reason for this is the revocation is punishment for the underlying offense while the sentence on the new case is just that: punishment on a separate matter.
Case in Point: Ex parte Tarver
In Tarver, the defendant was found guilty of possession of cocaine and was granted probation for ten years. The following year, the defendant was charged with assault. The State moved to revoke his probation, based on the allegation that he had violated the terms of his probation by committing the assault. The question on appeal was whether a revocation based on the new offense would constitute double jeopardy. The Court of Criminal Appeals determined that although Tarver was twice placed in risk of punishment, the punishment would be for different offenses and therefore double jeopardy did not apply. Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986).