Probation and Deferred Adjudication in Texas

Attorneys are frequently referred to as “counselor,” and with good reason.  An attorney should be more than someone that knows the law—they should be attorneys, advocates, and counselors.  The result is that sometimes what the general public thinks of as a “win” in a sentence is anything but a win.  This distinction frequently revolves around probation sentences. 

Texas law allows for different types of what is commonly referred to as probation or community supervision.  Lawyers and those familiar with the system will qualify those types as either “straight” or “deferred.”  Straight probation is a sentence to a term of confinement that is suspended, whereas deferred does not result in a conviction and no definitive time sentence is imposed.  To really understand the difference, how to succeed with either, and what the best sentence is for an individual, further explanation is needed.

Straight probation is as simple as a conviction for an offense and a sentence to a term in jail or prison.  Under Texas law, an individual cannot receive probation if the sentence is over 10 years in prison.  There is no need to get into the specifics at this point of what cases can or cannot receive probation, but not all cases are eligible for probation.  Some offenses allow for the jury to award probation but not a judge, some offenses will not permit the judge to award probation.  In either event, a finding of guilt is required and the ultimate sentence must not be over 10 years.   It is important to note that a defendant cannot request probation from a jury if the defendant has ever been convicted of a felony in this state or any other state or federal court.  This requirement is generally referred to as being eligible.  When an attorney says a client is not eligible for probation, he or she frequently means the defendant has a criminal record that prohibits a jury from awarding probation.  Straight probation can be a term up to 10 years in a felony case, but the times vary based on the offense level. What is important is that the sentence to time and the sentence to probation need not be the same.  A defendant can be given a misdemeanor sentence of 90 days in county jail probated for 18 months or 7 years in prison probated for 5 years, for example.  In each case the probated for time is how long the person is on probation and the sentence is what they would have served if not for the suspended sentence.

The other type of probation is deferred adjudication, frequently referred to simply as deferred.  Deferred adjudication requires the judge to believe that, while the evidence (the plea) substantiates a finding of guilt, it would be in the best interest of the defendant and society to delay that finding and place the defendant on community supervision.  Because this type of probation defers any finding of guilt, a jury cannot award deferred, because by sentencing they have by definition found a person guilty.  Instead, deferred is the result of a plea agreement between the prosecution and the defendant and approved by the judge.  This latter approval is important because all plea bargains are subject to approval by the judge.  A judge is not required to accept a plea bargain, but if they do reject the plea other options apply.  Some judges will not agree to deferred adjudication in certain types of cases and some courts believe the eligibility requirement for jury ordered community supervision should apply to all probation cases.  Terms vary just as they do in straight probation, but there is not actual time sentenced and the longest initial sentence is 10 years in a felony case.

In each type of probation, the law allows the judge to determine the conditions of probation.  A judge may order drug treatment, up to and including a Substance Abuse Felony Punishment Facility (SAFP), time in jail, random drug testing, no contact with victims, or a multitude of other requirements as conditions of probation.  The standard conditions are regular reporting to a probation officer, payment of fines and costs, payment of probation fees, avoiding people that are known criminals, keeping a steady job and residence, etc.  Should a defendant on either type of probation violate even a single condition of probation, that can be grounds for a motion to be filed revoking probation, the Court to issue a warrant and have that person arrested. The defendant is then entitled to a hearing in front of the judge to determine if it is more likely than not that a condition was violated, and if a condition was violated to enter a sentence.  In the case of deferred adjudication, if the judge finds a condition was violated, that judge will find the defendant guilty (it was not done originally) and may sentence the defendant to any term in the range of punishment.  For example, a defendant placed on deferred adjudication for a first degree felony (5-99 years in prison) for a period of 8 years that violates his or her deferred adjudication can receive a sentence up to 99 years in prison.  If the defendant is on straight probation, then the judge is limited to the punishment that was originally sentenced, thus a defendant sentenced to 7 years probated for 5 years can be sent to prison for up to 7 years.  Plea bargaining does exist in these cases.

The first thing to understand is that the defendant is not entitled to a jury in a revocation proceeding, they will only receive a bench trial.  Second to note is that the state need only prove a single violation.  While prosecutors will allege every violation they believe a defendant committed, they are only legally required to prove one violation to prevail and have a jail or prison sentence entered.  Third, the burden of proof is lower.  The prosecution must prove a crime beyond all reasonable doubt obtain a guilty verdict.  However, a Motion to Revoke Probation or a Motion to Adjudicate Guilt is not a criminal trial but an administrative hearing, so the prosecutor only needs to prove the violation by a preponderance of the evidence.  If they show the judge that it is slightly more likely than not that the defendant violated a condition of probation, they win.  Finally, deferred adjudication opens up the full range of punishment.  It should be noted that appeals courts are less likely to overturn a sentence for a revocation than for a criminal offense.  It’s also important to point out that, at a revocation hearing (here used to describe a Motion to Revoke or a Motion to Adjudicate Guilt) the issue is violation of probation conditions and not guilt or innocence of the underlying offense.  A trial court will not generally allow much argument that the defendant should not have been convicted or was never guilty in the first place (though there may be other ways to raise those arguments).

This all said, it’s important to understand the types of probation, the consequences of a plea to probation, how to be successful on probation, and a defendant’s honest ability to succeed on probation. Again, a defense attorney should be an advocate for a defendant and for the best result possible for that particular defendant, and should be able to counsel the defendant as to the best choice.  Just because a probated sentence sounds better on paper, or because deferred adjudication does not result in a conviction if the probation is successfully completed, does not mean that those are the best sentence for an individual defendant. Though an indigent defendant should receive the same opportunities as a wealthy one, a homeless defendant with no transportation is likely to have more problems making the regular appointments with a probation officer, completing required classes, etc.  It should always be the client’s choice in taking a plea, but all factors should be considered.  If you as a defendant know that you are unlikely to stop smoking marijuana, probation of any type might not be a good idea for you as you are likely to fail a drug test and be out the time, the money, and the efforts of probation will be wasted, and might cost you a better jail time deal.  Some honest self evaluation is necessary, and you have to speak openly to your attorney about your options. 

If probation is agreed, there are steps all defendants should take to be successful on probation and avoid revocation:

• Always appear.  From time to time a defendant will say that his probation officer told him not to bother to come in if he didn’t have his probation fee or some other money.  Those that take that advice are then revoked for failure to report.  Texas law requires that the prosecution prove, in the case of court costs, probation fees, and fines, that the defendant had the money to pay and chose not to pay.  If you are broke, continue to report and deal with the money when the issue comes up.  Don’t give a real reason to revoke.

• If you have a choice on which to pay first, pay restitution first, pay for classes and drug tests (UA’s), and pay your fees/fines/costs last.  There is a hierarchy and restitution is not specifically mentioned in the statute that requires the proof of ability to pay above.

• Be ahead of the game.  If you are going to miss an appointment, go in to probation early, not late.  If you have to reset a class or an appearance, do it before the scheduled date and not after.  This allows you a better chance of not missing what you have to complete or being found to have failed to appear.

• Complete classes early.  This applies to classes and to community service.  The earlier it is completed, the better.  If it is possible to complete all community service hours by working 3 or 4 weekends straight, do it.  If the sentence is 24 hours community service and you can work 2 days at 12 hours a day or 3 days at 8 hours a day, then do that. Take your own physical limitations and work schedule into account, but do these things as quickly as possible.  If they are completed, they can’t be used to revoke your probation and cannot bite you later.

• Create a probation notebook.  The day you start probation, get a cheap notebook and keep photocopies of all certificates in the notebook.  I suggest a 3 ring binder with some inexpensive dividers that can separate a section for any test results (UA’s, hair tests, etc), a section for every class you take (Theft Intervention, Drug Offender Education Program, etc), a log sheet for every date you had contact with your probation officer or anyone related to your probation (11/20 attended this class, 11/30 met probation officer, 12/5 UA) and keep details of time, date, location, names, etc, a section for receipts such as fee payments, and a section for notes or correspondence (emails to your officer, notes of when you rescheduled or your officer called, whatever).  These things are important for as long as you are on probation.  Once you are officially released, most of this is no longer necessary (some classes will be required to regain a driver license for certain offenses so those certificates might be kept longer), but the idea is to document your progress and success in the event the probation department loses documents or an unethical officer attempts to have you revoked unlawfully.

• Be courteous and polite, even if you don’t like people you are dealing with.  Some probation officers act like they hate the concept of probation or don’t believe in the system.  They will treat defendants like dirt, they will be sarcastic and rude.  As someone under their supervision, you have to develop a thick skin and be polite for at least the few minutes you interact with them.  Remember, they can make your life more miserable or recommend early release from probation or change in conditions to make your life easy. They can also suggest a motion to revoke be filed, and judges listen to how you treat their officers. This also applies in classes, where a defendant must participate and show involvement.  Be respectful and try to participate, but do not wisecrack, abuse others in group sessions, do not attempt to waste time or share unrelated information.  Probation officers consider the sharing of irrelevant and unnecessary information in a group session as non-participation and attempting to waste group time, and it is frowned upon.

• Try to finish every probation requirement early.  If you meet certain time requirements on probation and have successfully completed the conditions of probation, the judge has the authority to release you from probation early.  This does not mean that they will or that they are required to, but it is always worth an attempt.  It is advisable to do additional things—take college or trade classes, work at promotions at work, do additional charity work, etc.—to show your growth and change if you hope to be released from probation early.  Judges look for evidence of rehabilitation, and the willingness to go above and beyond helps to demonstrate this.

There are other advantages and disadvantages to probation in Texas.  Deferred, for example, is eligible for a non-disclosure in certain cases, meaning only state agencies would be allowed to discover details of the case.  This non-disclosure option now also exists for certain DWI cases, even though DWI cases are not eligible for deferred adjudication.  Probation is expensive, but it may allow you to keep your driver license, where a conviction for certain offenses requires a mandatory suspension.  In the end, each case is different, and the only way to make the best decision is to speak to an attorney and have a meaningful discussion of all the options.  Probation is never a good idea if it only succeeds in setting an individual up to fail.