Types of Probation in Texas

Attorney Marsh
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Probation in Texas Criminal Cases

A lot of clients come into my office and ask me about probation and their criminal cases. The technical term for probation has been changed to “Community Supervision.” There are two types of probation in Texas. These are a “straight probation” or a Deferred Adjudication. The type of probation you receive depends largely on your plea agreement or the Judge’s decision following a jury trial. Each type of probation has its own pros and cons.

Probation, Community Supervision, and Straight Probation

All of these names mean the same thing. Probation is when your jail/prison sentence is suspended and you are assigned conditions of probation. This means you get to stay out of jail/prison and go home. For example, let’s say you’re charged with a Felony DWI and your sentence is for 2 years prison/TDC probated for 5 years. (DWI is the perfect example for a Straight Probation because a Deferred Adjudication is not available for DWI.)

In our example, the two years jail will be converted to 5 years of probation by a plea agreement you enter into with the State. You will be assigned a probation officer for the time you are on probation. The conditions of probation for our DWI example will usually include some of the following: avoiding alcohol, installing an Ignition Interlock Device (IID) on your car, drug/urine testing and treatment/counseling as recommended.

Using our example, the benefit with a Straight Probation is that if your probation is revoked, the State will be capped at 2 years in jail. A criminal charge which you completed a Straight Probation IS NOT eligible for any type of record sealing.

 

Deferred Adjudication Probation

This is most commonly referred to as a “Deferred.” Too often I hear people call this  “Deferred Adudification” – There is not “F” in adjudication. Let’s use the example of misdemeanor Possession of Marijuana Under 2 Ounces or POM. This POM is a Class B misdemeanor meaning the most jail time you can receive is 6 months. Same as above, a deferred is usually offered through a plea agreement with the State. Everything about a deferred adjudication is the same as above except two major differences.

 

Difference Between Probation and Deferred Adjudication

The two difference between probation and deferred adjudication are important. First, a probation caps your jail time if revoked based on the plea bargain. If your probation is revoked on a deferred adjudication, you are subject to the full range of punishment for the crime. Using our example above, you would be facing the full 6 months if revoked. The major difference affects felony deferred adjudication offenses because you could then be subject to 2 years jail for a state jail felony, 10 years for a 3rd degree felony, 20 years for a 2nd degree felony or 99 years for a first degree felony. Basically, you have a lot more to potentially lose if you get your probation revoked while on a deferred adjudication.

 

The Good News

The silver lining in this cloud of deferred adjudication is a non-disclosure. Once a deferred adjudication is successfully completed, you may request that the Court seal your record. In my blog post about Sealing Criminal Records in Texas – Non-Disclosure I talked about having your criminal record sealed and what a non-disclosure means. Having your record sealed, even partially, can greatly increase your private employment opportunities.

Summary

There are two types of probation in Texas. Unfortunately, you don’t always get to pick which one you want or get. However, knowing which type of probation you’re offered to or receiving can affect your plea bargain decision. It can also affect your ability to have your record sealed after you complete your deferred adjudication.

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