Felony probation is an alternative to a jail sentence. It is available in certain felony cases in Texas. In others, it is not an option. Depending on the case, probation can be issued by either the judge or the jury. Defendants who receive a probation sentence either do not go to jail or spend less time in prison. Instead, they serve that time under the strict conditions of their probation. If they break those conditions, they can be sent to jail.
In Texas, probation is often referred to as community supervision. It is a way for defendants to be supervised while in the community, rather than behind bars.
1. What is felony probation?
Felony probation is a criminal sentence in Texas. Defendants facing a criminal charge for a felony can be sentenced to felony probation if they are convicted. That probation sentence can be in lieu of jail time. It can also reduce the amount of jail time that has to be served.
Felony probation can take a few different forms:
- deferred adjudication, where a judge delays a pending case while the defendant performs probation,
- conviction probation, where a judge includes probation in a sentence after a defendant has been found guilty, and
- straight probation, where a judge or jury sentences a convicted defendant entirely to probation, rather than jail.
Defendants sentenced to felony probation have to abide by all the terms of their probation. Those terms will depend on the criminal offense for which they were convicted.
In Texas, the terms and conditions of felony probation often include:
- avoiding another arrest or criminal charge,
- performing community service,
- paying restitution to the victims of the offense,
- reporting to a probation officer regularly, often weekly,
- reporting any address changes or employment developments to the probation officer,
- avoiding people with criminal records or co-defendants from the conviction,
- getting a keeping a stable job,
- keeping up with child support, alimony, and other financial responsibilities,
- undergoing random drug or alcohol testing,
- attending and completing required classes, like alcohol or drug courses,
- staying in the county unless given express permission to leave by the probation officer, and
- paying court costs, probation supervision fees, and other fees and fines.
The terms of felony probation can be very strict. They can also last for several years. Violating any of them can lead to serious consequences.
In a misdemeanor case, the court may impose misdemeanor probation.
2. Can probation be revoked?
Probation can be revoked if the probationer fails to abide by its terms and conditions.
If any probation term is violated, the prosecutor can take action. He or she can file a motion to revoke or adjudicate probation. When the court receives the motion, an arrest warrant will be issued. The probationer will be arrested and brought to the county jail. They will stay there until the revocation hearing.
At the hearing, the prosecutor has to show a judge that probation was violated. They only have to show this by a preponderance of the evidence, rather than beyond a reasonable doubt. If the judge is persuaded, he or she will either:
- revoke probation and send the defendant to jail, or
- make the terms of probation even stricter before releasing the defendant.
If the judge sends the defendant to jail, the sentence starts all over. Inmates do not get credit for any time they spent on probation in Texas.
3. Can probation end early?
Probation can end early in Texas. Probationers typically need to complete all of the requirements for early termination to be considered. Any probation violations will likely prevent early termination. They also have to complete a certain portion of their sentence.
Probationers can speed up early termination by:
- paying attorney's fees,
- covering court costs,
- completing drug or alcohol treatment, or
- pursuing an education.
4. Who can sentence someone to probation?
Either the judge or the jury can issue a sentence of probation.
Judges tend to use probation more often. However, judges are powerless to sentence a defendant in a 3G offense to straight probation. 3G offenses are the crimes listed in Article 42A.054 of the Code of Criminal Procedure. They used to be listed at Section 42.12(3)(g), which is why they are called 3G offenses. They include:
- burglary (Penal Code 30.02),
- aggravated kidnapping (Penal Code 20.04),
- aggravated robbery (Penal Code 29.03), and
- indecency with a child (Penal Code 21.11).
Juries are less likely to sentence a defendant to probation. However, they can sentence most cases to probation, including 3G offenses.
5. When is felony probation not an option?
There are several situations where felony probation is not an option.
Criminal convictions with sentences longer than 10 years are ineligible for probation. This means capital felonies can never be sentenced to probation.
3G offenses are ineligible for straight probation until a jury verdict. If a judge is responsible for the sentence, there has to be jail time served. This applies to both bench trials and plea deals. The only way to get probation in lieu of jail in a 3G case is to take it to a jury trial.