Deferred Adjudication and Probation in Texas | Fort Worth Criminal Defense

Benson Varghese
Jun 14, 2014 · 7 min read

What is Probation in Texas?

Deferred Adjudication and Probation in Texas are the two forms of “community supervision” authorized by law. Community supervision consists of programs, sanctions, and conditions set forth by a court that a person has to meet as an alternative to jail or prison. Community supervision (formerly called adult probation) may be ordered for misdemeanor or felony offenses and is generally imposed in lieu of a jail or prison sentence.

What is Deferred Adjudication in Texas?

Deferred adjudication is provided for in Code of Criminal Procedure 42A.101 through 42A.111. Deferred adjudication allows you the opportunity to keep a conviction off your record. If you are charged with a felony, this may keep you out of State Jail or the State Penitentiary.

How long does Deferred Adjudication stay on your record?

If you successfully complete deferred adjudication, your case will be dismissed without a conviction on your record. While the arrest never automatically falls off your record, you may be eligible to have your arrest sealed through a petition for non-disclosure. You will also want to speak to your attorney about early release from deferred adjudication if you have been doing well during the deferred adjudication period and you have not had any violations.

How long is Deferred Adjudication in Texas?

A misdemeanor punishable by jail can be deferred for up to two years. A felony can generally be deferred for up to ten years. Skilled defense attorneys may be able to negotiate terms that are not as long.

A judge may release a person from deferred adjudication early when it is in the best interest of society and the probationer. However, a probationer does not have a right to early termination; it is purely discretionary on the part of the judge to allow someone to be released from deferred adjudication early.

It is important to remember that a jury cannot place someone on deferred adjudication.

What are the differences between Deferred Adjudication and Straight Probation?

What is “straight probation?”

Unlike deferred adjudication, when a person is placed on straight probation, it is after a finding of guilt. Because it is a sentence that is probated, a jury may probate offenses after a trial by jury.

A misdemeanor punishable by jail can be probated for up to two years. A felony can generally be probated for up to ten years.

A judge may release a person from probation early for most cases at 1/3 time when it is in the best interest of society and the probationer. A review at 1/3 time is discretionary. A review at 1/2 time is mandatory upon request. Even though the review is mandatory upon request, a probationer does not have a right to early termination; it is purely discretionary on the part of the judge to allow someone to be released from probation early.

Can I get Probation for in Texas?

Probation is not available for sentences that are 10 years or longer. While juries are allowed to probate most offenses, judges face limitations on which offenses may and may not be probated. These limitations are set out in Code of Criminal Procedure 42.12 Section 3g and these offenses are known as “3g offenses” in Texas.

What are the “3g offenses” in Texas?

What are the general conditions of probation or deferred adjudication in Texas?

The judge sets conditions of probation. The most common conditions of probation or deferred adjudication in Texas requires that a probationer:

  • Not violate any other laws
  • Avoid any bad conduct including use of illegal controlled substances
  • Avoid bad people and places.
  • Report as directed by probation office: Generally once a month
  • Be subject to house inspections
  • Maintain a job
  • Support your dependents
  • Advise probation officer of any address or job change
  • Execute a waiver of extradition
  • Submit to drug testing
  • Pay probation supervision fees, Crime Stopper fees, and court costs
  • Complete GED or obtain high school diploma
  • Complete any classes required by probation officer
  • Abide by limitations on travel
  • Abide by a curfew
  • Pay restitution, if any, to crime victim
  • Complete community service
  • Complete a psychological or psychiatric evaluation

In Tarrant County, felony probation officers supervise approximately 130 people in any given month. Most adult probationers are ordered to report once a month for half hour meetings. Probationers on more serious offenses might have in-home visits or inspections and field visits by a probation officer.

Can I get early release from probation for a DWI in Texas?

Texas does not allow early release from a DWI in Texas. However, a judge may allow a person to go to non-reporting status after the probationer has completed half their term. The judge may also authorize the early removal of interlock.

How many people are on probation in Texas?

In 2015, there were nearly 400,000 individuals on probation in Texas. More than half of those were on felony probation. Men outnumbered women by over two times. Of a supervised population of 382, 714 as of August 31, 2015, there were 101,657 classified as white, 89,409 classified as hispanic, 51, 499 classified as black, and 3,561 classified as other. (There were 50,191 individuals classified as black in prison on the same date, 47,740 classified as white, 49,427 classified as hispanic, and 788 classified as other.) Most individuals on probation are on probation for DWI or drug offenses.

How much grant funding does a county get for probation?

Using Tarrant County as an example, here is how the grant funding was broken up for the 2016–2017 fiscal year:

Tarrant Sex Offender Caseloads $897,368
Tarrant Substance Abuse Aftercare Caseloads $151,898
Tarrant Treatment Alternative to Incarceration $797,803
Tarrant Mentally Impaired Caseloads (MHI) $317,978
Tarrant Day Treatment Programs $980,875
Tarrant Contract Residential Treatment $132,595
Tarrant S.W.I.F.T. Court $176,952
Tarrant Assessment Unit $465,845
Tarrant High-Risk Caseload $132,938

Adjudication Proceedings and Probation Revocations

Failure to comply with any of the conditions of deferred adjudication or straight probation could result in sanctions, a petition to revoke probation or adjudicate, and ultimately a jail or penitentiary sentence. A defendant is entitled to due process and a hearing on any alleged violation of probation. This hearing is before a judge who will determine if conditions have been violated. The judge will have sole discretion to then sentence the defendant to the penitentiary or jail if a violation occurred. Unlike a trial on the merits of a case, the State only has to prove its case by a preponderance of the evidence.

When a person is on deferred adjudication, the court has the entire range of punishment for the underlying offense at its disposal. For a case that is on straight probation, the judge is limited to the maximum sentence imposed at the time of the plea or finding of guilt.

Double Jeopardy

The Fifth Amendment to the United States Constitution and Article 1, Section 14 of the Texas Constitution protects an accused person against being punished for the same offense twice.

No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction. Tex. Const. art. I, § 14.

Probation Revocation and Double Jeopardy

When a person violates a condition of probation by committing a new offense, the person is subject to being punished first for the probation violation and second for the new offense. This is not, however, a violation of double jeopardy. The reason for this is the revocation is punishment for the underlying offense while the sentence on the new case is just that: punishment on a separate matter.

Deferred Adjudication and Probation in Texas: Ex parte Tarver

In Tarver, the defendant was found guilty of possession of cocaine and was granted probation for ten years. The following year, the defendant was charged with assault. The State moved to revoke his probation, based on the allegation that he had violated the terms of his probation by committing the assault. The question on appeal was whether a revocation based on the new offense would constitute double jeopardy. The Court of Criminal Appeals determined that although Tarver was twice placed in risk of punishment, the punishment would be for different offenses and therefore double jeopardy did not apply. Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986).

Contact us

Call us at (817) 203–2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:

  • Discuss the facts of your case;
  • Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
  • Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

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Probation Revocation and Deferred Adjudication Defense

    Benson Varghese

    Written by

    Criminal Defense Attorney. Former Prosecutor. Founder of Varghese Summersett PLLC.

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