Montgomery County Criminal Defense Attorney - Community Supervision/Probation

Montgomery County Criminal Defense Attorney - Brian Foley

A frequent question in the Montgomery County Criminal Defense practice is, "What is Community Supervision or Probation?"

The most direct answer is that probation and community supervision are the same thing. Probation is a possible punishment for misdemeanor and felony offenses in Texas where you report to a probation officer, get drug tested, pay a monthly supervision fee, pay a fine, and do classes and community service in exchange for not being sent to jail after pleading guilty in a criminal offense.

I typically refer to it as probation because that was its official name for many years. I've even heard it referred to as "being on paper." This is because of the requirements to continually check in with the community supervision department and the control that they exercise over your life during that process. Then the name changed to "Community Supervision" probably because someone thought that sounded nicer than probation. It is still almost universally referred to as probation among attorneys, judges, and even "community supervision officers." They will frequently refer to themselves as "probation officers."

To understand probation in Texas you have to have some familiarity with the punishment phase of a criminal case. The Penal Code and the Code of Criminal procedure outlines the different types of punishments and how they may be assessed in a criminal case. Typically punishment is determined through a negotiation between the prosecutor's office and the attorney representing the defendant.

The punishment from criminal offenses is almost always outlined as a combination of jail, state jail, or prison time and a monetary fine. The code of criminal procedure Chapter 42A covers probation. This chapter allows a judge, after a finding of guilt, to suspend the imposition of a jail, state jail, or prison sentence and place the defendant on Community Supervision. This is what I would refer to as a "Straight Probation." There is also a type of probation called, "Deferred Adjudication." This is often misspoken as "preferred adjudification" or other similar permutations. A deferred adjudication probation is where the judge accepts a plea of guilty from the defendant, finds that there is sufficient evidence to support a finding of guilt, but instead of making that finding on the record the judge delays this determination until the defendant can complete a probation. The process of finding a defendant guilty on the record of the court is the "adjudication" process. The delay of this process is "deferred adjudication." If the probation is completed then the judge never enters the finding of guilt and the case is dismissed under the Texas Code of Criminal Procedure. Because the case is never "adjudicated." The Defendant is able to say that they have never been "convicted" of the offense and may be eligible for a non-disclosure. Lets look at some of the other characteristics of "straight" and "deferred" probations.

Straight Probation

• Finding of Guilt on the Record

• Will appear as a conviction

• Cannot be used to enhance felony punishment under 12.42 of the Texas Penal Code.

• Can be used to find that someone has committed an offense in later punishment hearing.

• Can be used to enhance DWI but not Felony Punishment of DWI.

• Conviction can be removed after petitioning for judicial clemency.

• Judge Sets maximum jail time and fine which could be assessed against a defendant at the time of the plea. This means that if the maximum punishment is 1 year in jail and a $4,000 fine and the judge assesses 20 days in jail and a $500 fine and probates that sentence for 1 year of community supervision the worst thing that can happen if the probation is revoked is that you may be sentenced to 20 days jail and a $500 fine.

Deferred Adjudication Probation

• No finding of Guilt on the Record

• Will not appear as a conviction except in cases of Family Violence and DWI

• Cannot be used to enhance felony punishment under 12.42 of the Texas Penal Code.

• Can be used to find that someone has committed an offense in later punishment hearing.

• Can be used to Enhance DWI but not Felony Punishment of DWI.

• There is never a conviction and the case may be eligible for non-disclosure unless it is Family Violence.

• Judge does not set the jail time and fine which could be assessed against a defendant at the time of the plea. This means that if the maximum punishment is 1 year in jail and a $4,000 fine if the deferred adjudication is ended after a violation of the conditions and the judge adjudicate you guilty the judge will have the full 1 year and $4000 range to choose from when assessing punishment. This is particularly dangerous when the punishment range is for a felony which could be from 5-99 years in prison for a First degree felony.

The third major form of probation is what is called, "Shock" probation. A "shock" probation is where the judge sentences you to prison on a felony offense and then within 180 days the judge agrees to "shock" you out. The idea is that the judge wants you to feel the imposition of the prison sentence of say 10 years in prison and put you under the mental stress and shock. Then after a few months allow you to return and attempt to avoid the further imposition of the full prison sentence by completing probation. Just typing that feels wrong but this is in fact how the process works under Texas law.

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