In all of my cases I explain to my clients the punishment range which they are facing as they go to court. For many of my clients, probation is within that range. And most people have heard of probation and can guess what it means. But many first-time offenders don’t realize there are different kinds of probation and the one you chooses matters and has consequences.
What is probation?
Probation, or “community supervision,” is a possible sentence that a Defendant receives after they have pled guilty, or have been found guilty. Instead of serving a sentence in jail or prison, they are given the opportunity to “probate” their sentence and serve their time in their community. A misdemeanor probation can last as long as two years, while a felony probation cannot last longer than 10 years. During this time, an individual is assigned to a probation officer that they see monthly, they pay fees, fines and/or restitution, they participate in community service and other programs or treatment opportunities. Individuals may be ordered to stay away from certain locations or people during their probation. Days in jail could also be a condition of probation. There may be any number of conditions that are placed on the probationer that are specifically related to their case or needs.
Can I get probation?
Most first time offenders, or offenders with minimal criminal history, will be offered a probation during plea negotiations. However, if the prosecutor doesn’t feel that a probated sentence is in the best interest of the community, they do not have to offer probation.
The only time probation is mandatory, is for individuals charged with a State Jail Felony Possession of a Controlled Substance and that person has no previous felony convictions. In this circumstance, the Texas legislature has ordered that this individual be sentenced to a mandatory deferred adjudication. Code of Criminal Procedure 42.551. Probation is not mandatory if they have a felony conviction or have already been on probation for a state jail felony charge.
If a Defendant takes their case to a jury trial, and they are found guilty, a jury can recommend to a Judge that the sentence be served on probation. However, if the jury sentences a Defendant to a sentence of over 10 years, that sentence cannot be probated.
If a Judge assigns punishment, there are some offenses that are not eligible for probation. The Code of Criminal Procedure 42.12 says a judge cannot give probation for the following offenses:
- Capital Murder
- Indecency with a child by contact
- Aggravated Kidnapping
- Aggravated Sexual Assault
- Sexual Assault
- Sexual performance of a child
- Aggravated Robbery
- Drug cases in a school zone
- Injury to a child, elderly or disabled person
- Compelling prostitution
- Human trafficking
- Criminal solicitation
The Prosecutor isn’t offering probation, but I want it. What do I do?
If you are charged with an offense that is not prohibited from receiving a probation, you can plead guilty to the Judge and ask the Judge for probation. Typically, a charged individual would plead guilty to the Judge and then the case would be reset to a later date. While the case is reset, the individual would meet with the probation department for a Pre-Sentence Investigation (“PSI.) This is an interview with the probation department, where they ask about the individual’s substance abuse, alcohol, mental health, family, and criminal history. The interviewer also asks about the offense and the individual’s involvement. This interview is then typed up and given to the Judge, prosecutor and defense attorney to prepare for the sentencing hearing. On the date of the hearing, both the State and the Defense can call witnesses and present additional evidence that is relevant to the punishment of the charged individual. Once both sides rest and close, they argue to the Judge which punishment they think is most appropriate for the crime and the individual charged. The Judge then makes the final decision.
This can be a riskier option than being sentenced to a negotiated plea. It’s risky because you don’t know what the Judge will do and they may sentence you to the full range of punishment. However, if the prosecutor is not making an offer that you want to accept, this may be your only opportunity to ask for something different. This is where the advice and experience of your defense attorney is very important. You should consult with your attorney thoroughly before making any of these decisions.
What are the different kinds of probation?
Probation can either be formal probation or deferred adjudication.
Formal probation means that a person has pled guilty, has been found guilty, and instead of doing jail time they are going to serve their sentence on probation. If a person is sentenced to formal probation they will have a final conviction on their criminal history. This conviction cannot be expunged or sealed. They will have to disclose the conviction on job applications. If a person is placed on formal probation and violates their probation, a Judge can revoke their probation. The probationer can then be sentenced to prison or jail time.
In the alternative, a deferred adjudication occurs when a person pleads guilty, the Judge defers their finding of guilt and places them on probation. A Judge supervises the person on probation, if the probationer completes the conditions of probation successfully, the case is dismissed. If the charges are dismissed, the probationer can ask that their probation records not be disclosed in the future. This request is made in a Motion for Non-Disclosure and you should seek the advice and guidance of a lawyer to file one.) Most importantly, that individual would not have a conviction on their criminal record.
If the probationer is unsuccessful the Judge can revoked their probation and find the person guilty. The probationer is then facing the full range of punishment. If the deferred is revoked, the probationer will then have a final conviction on their criminal history. Again, this conviction will have to be disclosed in the future and cannot be expunged or sealed.
Can I get off probation early?
Someone on probation can request early termination. A Judge may consider when 1/3 of the sentence has been served. A Judge must consider it when ½ of the sentence has been served. Even though the Judge must review the request for early termination, they are not required to grant it. The Judge must find the conditions have been met and it is in the best interest of society and the probationer.
That’s a lot of information.
This is a lot of information and it’s meant as a general overview. This is not an exhaustive list of things to consider. In addition, there may be consequences for your immigration status, your nursing license may be effected, your right to own or carry a gun may also be effected.
Please contact The Law Office of Elizabeth Whited to discuss the facts and evidence in your case, your goals, and the options you have.