Misdemeanor probation in Texas is when a defendant is convicted of a misdemeanor, but the court imposes probation rather than the maximum jail sentence.
Probationers still have to abide by some very strict terms, though. If they break any of the conditions of their probation, it can be revoked. If this happens, they can be sent to jail.
Probation is also known as community supervision. Rather than the supervision happening in jail, it happens in the community.
1. What is misdemeanor probation?
Probation is a jail alternative. The judge or jury can put a defendant on probation rather than send him or her to jail. Probation can reduce the amount of jail time that a defendant serves. It can even completely replace jail time as a punishment.
Just because defendants get probation rather than jail does not mean it is a trivial sentence. Probation can be difficult. The terms of a probation program can be extremely strict. Some of the most common terms of probation include:
- community service,
- not getting arrested or charged with another crime,
- making restitution payments to the victim,
- seeing a probation officer regularly,
- completing drug or alcohol treatment,
- taking other courses as required by the court, like anger management classes,
- staying ahead of any child support payments,
- maintaining a steady job,
- being subjected to random drug or alcohol tests,
- staying in the area and only leaving it with the express permission of the probation officer, and
- paying court costs and probation fees.
Convictions for different offenses can come with different terms of probation. The length of probation will also vary, depending on the severity of the crime. A defendant's criminal history can also influence the terms of his or her probation.
Misdemeanor probation can also take several different forms. They are:
- straight probation,
- conviction probation, and
- deferred adjudication.
2. What is conviction probation?
Conviction probation is a sentence of probation that comes after a defendant has been convicted. The conviction can come after a trial or a plea deal. It can be made by a judge or a jury.
Conviction probation can cover all or only a part of the jail sentence for a misdemeanor. If it covers the entire jail sentence, it is called straight probation. Defendants sentenced to straight probation do not go to jail, at all.
Importantly, defendants who receive conviction probation will still have a criminal record. The conviction can be found by anyone who performs a background check. This can cause serious problems for decades. In some cases, the blemish can be expunged. In other cases, it cannot.
3. What is deferred adjudication?
Deferred adjudication is a probation sentence that happens before a conviction. Judges can delay, or defer, the conviction and allow the defendant to complete a probation sentence.
If the defendant succeeds, the case is dismissed. Because there was never a final conviction, the case does not produce a criminal record. Defendants do not need to expunge the conviction because it never happened.
If the defendant violates a term of his or her probation, the case resumes. It goes straight to sentencing. The judge can send the defendant to jail. None of the time spent on deferred adjudication probation would count towards the jail sentence.
4. Can misdemeanor probation be revoked?
Misdemeanor probation can be revoked if any of its terms are violated.
The revocation process begins with the prosecutor. If he or she decides that a probation term is being violated, they can file a motion to revoke probation. This will create an arrest warrant for the probationer. Once arrested, the probationer is brought to the county jail. The probationer can be held until the revocation hearing.
The prosecutor has the burden of showing that probation was violated at the hearing. They have to show this by a preponderance of the evidence. This is far lower than proving a violation beyond a reasonable doubt.
The probationer has a right to a lawyer at this hearing. They can defend against the charge by showing there was no violation.
The judge can:
- decide there was no violation and release the probationer,
- decide there was a violation, revoke probation, and send the probationer to jail, or
- decide probation was violated, tighten the terms of probation even more, and release the probationer.
When probation was violated and was granted through deferred adjudication, judges often send a defendant to jail.
5. Can probation be completed early?
Probation can be sped up. This process is known as early termination of probation. Probationers have to stay out of trouble and complete all of the terms of probation. Any violation at all can doom early termination.
Most terms of probation are only eligible for early termination after a certain portion of the sentence has been served.