When SAFP Is Part of a Probation Plea

Frequently, plea offers in felony cases require a defendant to agree to SAFP or SAFPF (pronounced safe-p, short for substance abuse felony punishment facility). The law in Texas is that a judge sets all conditions of probations.  Some counties allow for the prosecutor to plea bargain conditions of probation, some require an evaluation to suggest conditions and allow attorneys to make arguments based on the results of that evaluation, and some judges simply allow for the defendant to agree to probation following a Pre-Sentence investigation (PSI) that will absolutely set conditions of probation.  The thing to remember in those cases is that the judge, not the DA, ultimately decides conditions of probation.

Texas law allows for several conditions in probation cases, including time as a condition (up to 180 days in the county jail as a condition of probation) or substance abuse treatment, in addition to specialized conditions in sexual assault cases or DWI cases (interlock, for example).  The SAFP option is a state funded and state run type of drug rehab.  SAFP is a six-month, in-prison treatment program followed by 3 months of residential aftercare in a transitional treatment center (TTC), which is in turn followed by 6-9 months of outpatient aftercare, etc.  The program is the probation counterpart to the In Prison Therapeutic Community (IPTC) for those that are sentenced to prison time and in need of substance abuse treatment.  There is also a Special Needs SAFP program for probationers with medication requirements, physical disabilities, or mental health issues that is 12 months in length.

SAFP was created in 1991 in response to a shortage of bed space in our prison system.  Initially, the Texas legislature funded 14,000 rehab beds (12,000 SAFP and 2,000 IPTC).  That number was dropped in 1995 to 5,200 SAFP beds and 1,500 IPTC beds.  As of fiscal year 2012, SAFP had 3,786 available beds that housed 3,433 inmates according to the Legislative Budget Board.  That’s 3,433 of 152.303 prisoners on hand in Texas prisons according to the Texas Department of Criminal Justice.

A key question for many is time credit.  If a probationer is revoked, he will get credit for the time he spent in SAFP provided that he successfully completed SAFP.  If he fails to complete SAFP, he will not get credit for the time he was in custody for the program and will also likely have his probation revoked.  However, courts frequently order defendants to stay in jail until a place comes available in SAFP. That time is called “dead time,” and under the law receives no credit toward a sentence if a probationer is revoked, though some judges will consider that time regardless. 

From the standpoint of a defendant offered a plea deal that includes SAFP, the question is whether it is a benefit to accept SAFP.  When considering that SAFP is a 6 month commitment to a prison facility, followed by 3 months of aftercare and then probation, the time must be compared with what the sentence would be under a non-probation sentence.  Consider this: the range of punishment on a state jail felony is 6 months to 2 years.  If the prosecution offers probation or 6 months in state jail (this is ignoring the concepts under 12.44 of the penal code that would allow punishment as a misdemeanor), then the comparison is 6 months SAFP + 3 months TTC + probation time vs. 6 months and done in the state jail facility.  In a higher level felony, parole issues come into play.  A non-aggravated felony is generally eligible for parole after they serve 25% of the sentence, including good conduct time.  Thus, a sentence of 4 years in TDC (prison) is parole eligible after 5 months and 21 days, approximately.  There is no guarantee that parole will be granted, but it must be considered in deciding what plea to accept, if any.

In another post, I’ve discussed the current parole eligibility issues and time frames.  One additional factor that adds into the discussion of whether to accept a plea deal with SAFP is deferred adjudication, which if successfully completed would prevent a final conviction under Texas law.  As has been discussed, probation is not for everyone, and should be something you discuss with your attorney.  In the end, SAFP is state run rehab, and as with all rehab programs is only as successful as what you put into it, is only successful if you believe in it and that it is necessary, and is run by the government prison system rather than a healthcare provider.