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Texas Probation and Community Supervision Law

Probation and Community Supervision are names used to describe the same type of alternative to a jail sentence. In most criminal cases, judges and juries may not believe that a jail sentence is the best form of punishment for a criminal offense. This may be because jail is considered especially harsh, because the jail is overcrowded, because jail is expensive for the state or for a host of other reasons.

In such cases, Texas law allows people to be sentenced to a term of “community supervision.” Texas law no longer refers to this as probation, but the word probation is still commonly used.

UPDATE: HB 2758, 86th Texas Legislative Session, effective September 1, 2019, amended the list of offenses where judges and juries may give probation. HB 3582, 86th Texas Legislature allows people charged with certain intoxication offenses to receive deferred adjudication community supervision. Learn more about the 2019 Texas Legislative Session changes regarding probation eligibility or eligibility for DWI deferred

If you are on probation in Dallas County or Tarrant County (and many other counties), 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.

Do you need help with a Probation issue? Call criminal lawyer Paul Saputo at (888) 239-9305.

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 the state penitentiary. 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 maintains your eligibility for a type of record sealing called an Order of Nondisclosure. Similar to straight probation, you will not have to go to jail or be sentenced to State Jail or the State Penitentiary. If you complete the period of deferred adjudication, your case will be dismissed and no conviction will ever be entered on your record. You may also be eligible for early release through Judicial Clemency (similar to straight probation). However, if your deferred adjudication probation is terminated early, you will want to Petition for Nondisclosure instead of having your conviction set aside because there is no conviction to set aside (you were never convicted) and an Order of Nondisclosure actually removes the record of the arrest. A jury cannot place someone on deferred adjudication. Learn more about Orders of Nondisclosure

Also, it is important to note that under federal law, a dismissal entered pursuant to deferred adjudication still counts as a conviction.

What is the difference between Straight Probation and Deferred Adjudication Probation

The difference between straight probation and deferred adjudication probation is fundamentally the final result at the end of the supervision period. While a successfully-completed deferred adjudication probation period results in the case being dismissed (and thus eligibility for an order of nondisclosure), 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. It is also important to know that state law does not allow a jury to place someone on probation. But a jury can place someone on probation if it is otherwise allowed.

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

You can end your probation early if you (1) qualify, (2) you have completed enough time on probation (see the section below, 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.1

If you are eligible to be released early from 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. Learn more about Judicial Clemency

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.2 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.054.2a The 86th Texas Legislature made some changes to the list, and the updated list is below.

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, 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.

Section 3g Offenses
Section 3G Offenses. This is a list of all the “3G Offenses” from the old Texas Code of Criminal Procedure 42.12(3)(g). These offenses are now listed under Texas Code of Criminal Procedure Section 42A.054 but they are substantively the same.

The following is a list of the current 42A.054 offenses. The offenses in brackets were added in the 2019 Texas Legislative Session.

  • Criminal Solicitation – Penal Code Section 15.03 – if the case is punishable as a felony of the first degree
  • Murder – Penal Code Section 19.02
  • Capital Murder – Penal Code Section Section 19.03
  • Indecency with a Child – Penal Code Section 21.11(a)(1)
  • Aggravated Kidnapping – Penal Code Section 20.04
  • Aggravated Sexual Assault – Penal Code Section 22.021
  • Aggravated Robbery – Penal Code Section 29.03
  • 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
  • Sexual Assault – Penal Code Section 22.011
  • Injury to a Child – Penal Code Section 22.04(a)(1) – if the offense is punishable as a felony of the first degree and the victim was a child
  • Sexual Performance by a Child – Penal Code Section 43.25
  • [Aggravated Promotion of Prostitution – Penal Code Section 43.04]
  • Compelling Prostitution – Penal Code Section 43.05
  • Trafficking of Persons Penal Code Section 20A.02
  • [Continuous Trafficking of Persons – Penal Code Section 20A.03]
  • Certain Burglary offenses – Penal Code Section 30.02 (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;)
  • 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 in HB 2758, 86th Texas Legislative Session:2b

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.

Limitations on Jury-Recommended Probation

Juries may recommend probation for all cases except those listed in Texas Code of Criminal Procedure Section 42A.056

HB 2758, 86th Texas Legislative Session, effective September 1, 2019, also amended the list of offenses where juries may give probation. The following is an updated list, with the updates in brackets and strikethrough as appropriate.

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 21.11(a)(1), 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; or

(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.

Limitations on Deferred Adjudication Probation

Judges may place someone on deferred adjudication probation for all cases except as described in Texas Code of Criminal Procedure Section 42A.102

HB 2758, 86th Texas Legislative Session, effective September 1, 2019, also amended the list of deferred adjudication-eligible offenses by adding trafficking-related offenses to the list. HB 3582, 86th Texas Legislature allows people charged with certain intoxication offenses to receive deferred adjudication community supervision. The DWI Deferred eligibility changes are found in (b)(1)(B) below. The following is an updated list, with the updates in brackets and strikethrough as appropriate.

(a) [Subject to Subsection (b), a] [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 or 20A.03 or]3 [Section 49.045, 49.05, 49.065, 49.07, or 49.08] Sections 49.04-49.084, Penal Code; or

[(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]5

(B)[(D)]6 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;

(2) the defendant:

(A) is charged with an offense under Section 21.11, 22.011, [or] 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?

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


Legal References:

1 Texas Code of Criminal Procedure Section 42A.701(a)

2 Texas Code of Criminal Procedure Section 42A.701(g)

2a Texas Code of Criminal Procedure Section 42A.054

2b HB 2758, 86th Texas Legislative Session, Section 1

3 HB 2758, 86th Texas Legislature added this language

4 “Section 49.045, 49.05, 49.065, 49.07, or 49.08” was added in HB 3582, 86th Texas Legislature only. “Sections 49.04-49.08” was removed in HB 3582, 86th Texas Legislature but left in .

5 Subsection (B) was added in HB 3582, 86th Texas Legislature only.

6The renumbering of (B) to (D) appeared in HB 3582, 86th Texas Legislature only.

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