Texas Probation Law

Texas Probation Law covers both eligibility for community supervision and the conditions courts may require for probation. The felony probation rules in Texas are similar, but not entirely the same as the misdemeanor Texas probation rules.

What is Probation in Texas?

Probation, which is now called “community supervision,” is an alternative to a jail or prison sentence. Community supervision requires people to comply with a list of conditions while living in the community instead of jail. Under Texas law, Probation and Community Supervision mean the same thing.

If you’re on probation, you will have to follow certain rules. The felony probation rules are more strict than the misdemeanor probation rules. We discuss the differences between them in more detail below.

Texas probation law tends to be regularly updated by the legislature. In 2019, the legislature expanded the list of offenses for which judges and juries were not allowed to give probation. That list grew again in 2021, and then again in 2023. Also in 2019, the legislature allowed some DWI offenses to be eligible for deferred adjudication probation. In 2019 and 2023, the legislature also expanded the list of offenses for which deferred adjudication was prohibited.

What Texas Probation Laws have recently changed?

What changed in 2019?

In 2019, the legislature amended the law to further limit the kinds of offenses that are eligible for probation and deferred adjudication. The legislature added Penal Code Section 20A.03 (Continuous Trafficking of Persons), all sections of Indecency with a Child that were not already included, and Penal Code Section 43.04 (Aggravated Promotion of Prostitution) to the list of offenses for which judges are not allowed to place people on probation,^[1] for which juries are not allowed to place people on probation,^[2] and for which deferred adjudication is prohibited.^[3] In addition, deferred adjudication was prohibited for Penal Code 20A.02 (Trafficking of Persons).^[4] Trafficking of Persons was already ineligible for straight probation. These amendments did allow judges to grant probation for §43.04 and §43.05 offenses “if the judge makes a finding that the defendant committed the offense solely as a victim of an offense under Section 20A.02, 20A.03, 43.03, 43.04, or 43.05, Penal Code.”^[5]

The Texas Legislature also passed laws in 2019 that allowed people charged with certain intoxication offenses to be eligible for deferred adjudication.^[6] For more about deferred adjudication for DWI offenses, read the detailed section on our DWI probation page.

What changed in 2021?

In 2021, the legislature amended the law to again further limit the kinds of offenses that are eligible for probation and deferred adjudication. The legislature added Health and Safety Code Section 481.1123 (Manufacture or Delivery of Substance in Penalty Group 1-B), if the offense is punishable under Subsection (d), (e), or (f) of that section, to the list of offenses for which judges are not allowed to place people on probation,^[7] for which juries are not allowed to place people on probation,^[8] and for which deferred adjudication is prohibited.^[9]

What changed in 2023?

In 2023, the legislature amended the law to again further limit the offenses that are eligible for probation. The legislature added Penal Code Section 43.26 (Possession or Promotion of Child Pornography), to the list of offenses for which judges are not allowed to place people on probation.^[10]

In addition, the legislature amended the list of offenses for which deferred adjudication is prohibited by adding the newly-created Boating While Intoxicated with Child Passenger to the list.^[11]

What will you have to do while on Probation in Texas? What are the felony rules? What are the misdemeanor rules?

Under the terms of most community supervision rules, you will usually have to report once a month to meet with your probation officer. These meetings are usually 30 minutes long. You might also have have in-home visits or inspections and field visits by probation officer if you are on probation for a more serious offense. Other conditions of probation apply, among those conditions are typically requirements to comply with all state and federal laws, maintain a job, pay all court-ordered fines (and child support), attend certain classes and perform community service.

The felony probation rules tend to be much more serious, and more seriously enforced than the misdemeanor probation rules. Felony probation rules may require more frequent checkins and home and work visits. Many counties in Texas have separate departments for felony probation and misdemeanor probation.

If you fail to comply with any of the conditions of probation, a judge could impose sanctions, state attorneys could file a petition to revoke probation or adjudicate, and ultimately a judge could sentence you to jail or prison. However, you are always entitled to a hearing in front of a judge on any alleged violation of probation.

In these probation revocation hearings, the state’s attorneys have to prove its case that you violated a term of probation only by a preponderance of evidence, a much lower standard than “beyond a reasonable doubt,” which is used in other criminal court proceedings. If you are on deferred adjudication probation, the court may sentence you to a jail term as long as the maximum of the underlying offense. If you are on straight probation, the judge is limited to the maximum sentence imposed at the time of the finding of guilt.

What is Straight Probation?

Straight probation is a criminal punishment entered after a finding of Guilt that requires you to submit to certain conditions and monitoring by the court. Probation is now referred to as “Community Supervision” and the “straight” indicates that it is not “deferred adjudication probation.” What is the difference between straight probation and deferred probation?

What is Deferred Adjudication Probation?

Deferred Adjudication Probation, sometimes referred to as deferred probation or just deferred adjudication, is a type of court-ordered supervision that allows you to keep a conviction off your record and generally (but not always) maintains your eligibility for a type of record sealing called an Order of Nondisclosure.

Like straight probation, if you received deferred adjudication, you will not necessarily have to go to jail or prison. If you complete the period of deferred adjudication, your case will be dismissed and no conviction will ever be entered on your record. However, your arrest and prosecution records will still be available to the public until you get an Order of Nondisclosure, which seals the record of the arrest. A jury cannot place someone on deferred adjudication.

One important note is that under many federal laws, and even some state laws, a dismissal entered pursuant to deferred adjudication still counts as a conviction.

What is the difference between Straight Probation and Deferred Adjudication Probation?

There are several differences between straight probation and deferred adjudication probation. The most is fundamental difference is the the final result at the end of the supervision period. While a successfully-completed deferred adjudication probation results in the case being dismissed, a successful completion of straight probation does not necessarily result in a dismissal (but you may be eligible for a judicial set-aside through Judicial Clemency).

In addition, you cannot get deferred adjudication probation if the judge finds you guilty. In order to be sentenced to deferred adjudication probation, the judge has to withhold a finding of guilt after you plead guilty. Straight probation is a sentence imposed pursuant to a finding of guilt.

Certain offenses are ineligible for straight probation but eligible for deferred adjudication, while other offenses are ineligible for deferred adjudication but eligible for straight probation.

Can I end my probation early? Can I get early release from probation?

You can end your probation early if you (1) qualify (see below), (2) you have completed enough time on probation, and (3) you have completed your requirements of probation. Finally, the judge must approve your request for early termination.

You qualify to be considered for early termination if you have paid your fines, taken any required classes and counseling and you received probation for any offense other than (1) a DWI-related offense (under Sections 49.04-49.08 of the Texas Penal Code) (2) a registrable offense (an offense that required you to register as a sex offender) or (3) a 3g felony.^[12]

If you are eligible to be released early from straight probation, you may also be able to have your conviction set aside through a procedure called Judicial Clemency. If the judge approves you for Judicial Clemency, your guilty plea can be withdrawn and a dismissal entered in the place of a convcition. Ideally, you will want to file for a judicial clemency before you are dismissed from probation.

It is important to note that for the offenses where you are ineligible for early termination of probation, it may be possible to go into something called “non-reporting” status or have a judge grant other relief (such as removing an interlock device or other monitoring device).

How much time do I need to be on probation before I can get off of probation early?

You need to complete at least one-third of your probation or, if probation was greater than 6 years long, at least two years before you are eligible to terminate your probation early.^[13] You should also make sure that you have completed all of the conditions of your probation, including the payment of fines, finishing classes, community supervision and anything else that was required of you. See the section above explaining what it takes to get off of probation early.

How do I get early release from probation?

The early release process can be initiated in multiple ways. Your court probation officer can initiate the review, or you can file for an early review. If you want to file for an early review, you will have to file a motion to be released from probation early with the court.

What are the 3g offenses?

The “3g” offenses are so called because they used to be found in Texas Code of Criminal Procedure 42.12(3)(g). These are notable offenses because there are restrictions on what a judge or prosecutor can offer regarding probation. Now, the offenses are listed in Texas Code of Criminal Procedure Section 42A.054.^[14] The list has been updated in 2019, 2021, and 2023.

If you are charged with a “3G” offense, you can’t receive probation from a judge as part of a plea bargain agreement. But you may be able to receive deferred adjudication from a judge or probation from a jury; however, for some of the 3g offenses, probation is off the table in all cases. In addition, even though an offense is on the 3G list, juries may still be allowed to give you probation.

In addition, if you are convicted of a “3G” offense and sent to prison, you must serve at least half of your sentence or 30 years, whichever is less. If you are convicted of a “3G” offense and receive a sentence of less than 4 years, you are still are not eligible for parole until after serving 2 years.

List of Texas 3G Offenses

Here is a list of the current “3g offenses” (42A.054) offenses:

• PC §15.03 Criminal Solicitation – if the case is punishable as a felony of the first degree
• PC §19.02 Murder
• PC §19.03 Capital Murder
• PC §20.04 Aggravated Kidnapping
• PC §20A.02 Trafficking of Persons
• PC §20A.03 Continuous Trafficking of Persons *added in 2019
• PC §21.11 Indecency with a Child *expanded in 2019
• PC §22.011 Sexual Assault
• PC §22.021 Aggravated Sexual Assault
• PC §22.04(a)(1) Injury to a Child, Elderly Individual, or Disabled Individual if: (A) the offense is punishable as a felony of the first degree, and (B) the victim of the offense is a child
• PC §29.03 Aggravated Robbery
• PC §30.02 Burglary if: (A) the offense is punishable under Subsection (d) of the Burglary offense; and (B) the actor committed the offense with the intent to commit a felony under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code
• PC §43.04 Aggravated Promotion of Prostitution *added in 2019
• PC §43.05 Compelling Prostitution
• PC §43.25 Sexual Performance by a Child
• PC §43.26 Possession or Promotion of Child Pornography *added in 2023
• A Controlled Substance violation if punishment is increased under: (A) Section 481.140 of the Health and Safety code (Use of Child in Commission of Offense); or (B) Section 481.134(c), (d), (e), or (f) of the Health and Safety code (Drug-free Zones) if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections
• Health and Safety Code §481.1123 (Manufacture or Delivery of Substance in Penalty Group 1-B), if the offense is punishable under Subsection (d), (e), or (f) of that section *added in 2021
• Felony offenses where a deadly weapon was used during the commission of the offense or immediate flight therefrom

In 2019, the Texas Legislature created the following exception to the 3g list:^[15]

Notwithstanding Subsection (a), with respect to an offense committed by a defendant under Section 43.04 or 43.05, Penal Code, a judge may place the defendant on community supervision as permitted by Article 42A.053 if the judge makes a finding that the defendant committed the offense solely as a victim of an offense under Section 20A.02, 20A.03, 43.03, 43.04, or 43.05, Penal Code.

What are the limitations on Jury-Recommended Probation?

Texas probation law limits the cases in which juries may recommend probation. The law provides a list of cases that are ineligible for jury-recommended probation, just like it does for limitations on judge-ordered probation. The list is similar to, but not exactly the same as, the 2019 and 2021. The following is an updated list:^[16]

A defendant is not eligible for community supervision under Article 42A.055 if the defendant:

(1) is sentenced to a term of imprisonment that exceeds 10 years;

(2) is convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under Article 42A.551;

(3) is adjudged guilty of an offense under Section 19.02, Penal Code;

(4) is convicted of an offense under Section 21.11, 22.011, or 22.021, Penal Code, if the victim of the offense was younger than 14 years of age at the time the offense was committed;

(5) is convicted of an offense under Section 20.04, Penal Code, if:

(A) the victim of the offense was younger than 14 years of age at the time the offense was committed; and

(B) the actor committed the offense with the intent to violate or abuse the victim sexually;

(6) is convicted of an offense under Section 20A.02, 20A.03, 43.04, 43.05, or 43.25, Penal Code;

(7) is convicted of an offense for which punishment is increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections; or

(8) is convicted of an offense under Section 481.1123, Health and Safety Code, if the offense is punishable under Subsection (d), (e), or (f) of that section.

What are the limitations on Deferred Adjudication?

Texas law prohibits deferred adjudication in some certain circumstances. The law provides a list of cases that are ineligible for deferred adjudication, just like it does for limitations on judge-ordered probation. The list is similar to, but not exactly the same as, the 2019, 2021, or 2023. The following is an updated list:^[17]

(a) Subject to Subsection (b), a judge may place on deferred adjudication community supervision a defendant charged with an offense under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the victim, or a defendant charged with a felony described by Article 42A.453(b) only if the judge makes a finding in open court that placing the defendant on deferred adjudication community supervision is in the best interest of the victim. The failure of the judge to make a finding under this subsection is not grounds for the defendant to set aside the plea, deferred adjudication, or any subsequent conviction or sentence.

(b) In all other cases, the judge may grant deferred adjudication community supervision unless:

(1) the defendant is charged with an offense:

(A) under Section 20A.02, 20A.03, 49.045, 49.05, 49.061, 49.065, 49.07, or 49.08, Penal Code;^[18]

(B) under Section 49.04 or 49.06, Penal Code, and, at the time of the offense:

(i) the defendant held a commercial driver’s license or a commercial learner’s permit; or

(ii) the defendant’s alcohol concentration, as defined by Section 49.01, Penal Code, was 0.15 or more;

(C) for which punishment may be increased under Section 49.09, Penal Code; or

(D) for which punishment may be increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections; or

(E) under Section 481.1123, Health and Safety Code, that is punishable under Subsection (d), (e), or (f) of that section;

(2) the defendant:

(A) is charged with an offense under Section 21.11, 22.011, 22.021, 43.04, or 43.05, Penal Code, regardless of the age of the victim, or a felony described by Article 42A.453(b), other than a felony described by Subdivision (1)(A) or (3)(B) of this subsection; and

(B) has previously been placed on community supervision for an offense under Paragraph (A);

(3) the defendant is charged with an offense under:

(A) Section 21.02, Penal Code; or

(B) Section 22.021, Penal Code, that is punishable under Subsection (f) of that section or under Section 12.42(c)(3) or (4), Penal Code; or

(4) the defendant is charged with an offense under Section 19.02, Penal Code, except that the judge may grant deferred adjudication community supervision on determining that the defendant did not cause the death of the deceased, did not intend to kill the deceased or another, and did not anticipate that a human life would be taken.

How can my probation be revoked in Texas Probation Law?

Your probation can be revoked if you violate any conditions imposed by the judge or the Probation Officer. While a violation for any probation condition is grounds for revocation, some violated conditions are more serious than others and are more likely to result in a motion to revoke being filed. For instance, if you are on probation for DWI and you “blow dirty” by failing an in-car deep lung device (an interlock device), then you are very likely to be subject to a motion to revoke. However, just because the state’s attorneys have filed a motion to revoke does not necessarily mean that you will be revoked.

Learn more about Probation Revocation

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Legal References:

^1. HB 2758, 86th Texas Legislature (RS), Section 1, effective September 1, 2019^2. HB 2758, 86th Texas Legislature (RS), Section 2, effective September 1, 2019^3. HB 2758, 86th Texas Legislature (RS), Section 3, effective September 1, 2019^4. HB 2758, 86th Texas Legislature (RS), Section 3, effective September 1, 2019^5. HB 2758, 86th Texas Legislature (RS), Section 1, effective September 1, 2019^6. See HB 3582, 86th Legislature^7. SB 768, 87th Legislature (RS), Section 13, effective September 1, 2021^8. SB 768, 87th Legislature (RS), Section 14, effective September 1, 2021^9. SB 768, 87th Legislature (RS), Section 15, effective September 1, 2021^10. HB 1227, 88th Legislature (RS), Section 1, effective September 1, 2023^11. HB 1163, 88th Legislature (RS), Section 1, effective September 1, 2023^12 Texas Code of Criminal Procedure Section 42A.701(g)^13. Texas Code of Criminal Procedure Section 42A.701(a)^14. Texas Code of Criminal Procedure Section 42A.054^15. HB 2758, 86th Legislature, Section 1^16. Texas Code of Criminal Procedure Section 42A.056^17. Texas Code of Criminal Procedure Section 42A.102^18. The phrase “Section 49.045, 49.05, 49.065, 49.07, or 49.08” was added in the version of the law passed in HB 3582, 86th Legislature only. The phrase “Sections 49.04-49.08” was removed in HB 3582, 86th Legislature but it remained in the version of the law passed in HB 2758, 86th Legislature.