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.
PROBATION & COMMUNITY SUPERVISION FAQs
- What is Straight Probation?
- What is Deferred Adjudication Probation?
- What is the difference between Straight Probation and Deferred Adjudication Probation?
- Can I end my probation early? Can I get early release from probation?
- How much time do I need to be on probation before I can get off of probation early?
- How do I get early release from probation?
- What are the 3g offenses?
- How can my probation be revoked?
- Other probation violation FAQs
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.
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?
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.
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.
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).
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.
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.
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.
The 3(g) offenses are the following crimes:
- 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
- Drug cases where a child is used in the commission of the offense (Health and Safety Code Section 481.140), or a second or subsequent drug offense that took place within 1,000 feet of a school, playground, youth center or on a school bus (Health and Safety Code Section 481.140)
- Sexual assault – Penal Code Section 22.011
- Injury to a child, elderly individual, or disabled individual – Penal Code Section 22.04(a)(1) – if the offense is punishable as a felony of the first degree
- Sexual Performance by a Child – Penal Code Section 43.25
- Criminal Solicitation – Penal Code Section 15.03 – if the case is punishable as a felony of the first degree
- Compelling Prostitution – Penal Code Section 43.05
- Trafficking of persons – Penal Code Section 20A.02
- Certain Burglary offenses – Penal Code Section 30.02
- Felony offenses where a deadly weapon was used during the commission of the offense or immediate flight therefrom.
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 can receive deferred adjudication from a judge or probation from a jury after a guilty verdict in a jury trial. 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.
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
1 Texas Code of Criminal Procedure Section 42A.701(a)
2 Texas Code of Criminal Procedure Section 42A.701(g)