Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

Being on deferred adjudication probation for a Class B misdemeanor or higher will feel exactly the same to a defendant as being on “regular” probation.

Now, a County or District Court judge has the option of making any probation, whether regular-conviction or deferred a non-reporting probation. But it’s unusual.

In fact, in Austin/Travis County, it is extraordinarily rare. It’s more likely that I can get a case dismissed, or perhaps a fine only, than that I can work out a “probation by mail.”

I do know, however, that in some counties, probations where you report by mail are common, or even the norm.

But other than that, deferred adjudication means reporting to a probation officer, turning in proof of community service, fines, court costs, U/As, and all the other bells and whistles that come with regular probation.

[Question sent to me via email]

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Texas probationers are sometimes told by the lawyer representing them on an original charge, “Don’t worry about how long this probation is, you can apply for early release”. (I know this, because I’ve heard it from so many folks, it’s apparently a common thing some lawyers tell their clients.)

Now, it’s true that you can apply for early release as soon as one third of your probation period is up. The statute covering early discharge itself (Article 42.12 Section 20 Code of Criminal Procedure, “Reduction or Termination of Community Supervision”) is contained within the lengthy probation statute.

The question most probationers want to know, however, is “Will the judge in my case let me off early, and if so, when?”, or “What do I need to do to actually be discharged from probation?”

Despite some potentially confusing language in the statute, let’s start with this: early release from probation is entirely discretionary, not mandatory. There’s no way to force the judge to grant an early discharge.  Even if you have completed all the terms, if the judge doesn't want to let you out of the probation term, you'll have to finish it.

Second, while the law allows for petitioning the court for release 1/3^rd of the way through, most judges won’t grant a discharge that early. In Travis County, I’d ballpark the necessary length at somewhere between half and two thirds of the original probation term imposed before most judges will seriously consider letting you off early. Many times you hear a judge ask “You signed up for this long of a probation when you plead guilty. Why should I let you off without you completing your end of the bargain?”

Third, all conditions of probation (other than the length) must have been met: community service hours completed, classes finished, AA’s attended, monies paid, etc. As far as fees, fines, restitution and court costs goes, the only possible exception to that is some judges don’t require you to pay out the $62/month probation fees into the future. Then again, some do.

Finally, convictions for DWI, Sex Offenses, and State Jail Felonies are not eligible for early release.

No one should make a decision to accept a plea bargain in a case, on the basis of believing that they can automatically be granted an early release at some future time during the probationary period. Of course, it may be that X years of probation is truly the best deal that they can get, given the facts and circumstances of their case.

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Steven Kreytak writes an excellent piece in today’s Statesman highlighting a major flaw in the Travis County probation system. I’m sure there are similar issues all over the state, but I am personally familiar with the situation based on representing defendants arrested for possession of controlled substances in Austin. From Kreytak’s article:

Statistics show that hundreds of newly sentenced probationers in Travis County are waiting to get into court-ordered substance abuse treatment.

Judges send some offenders to county jails to wait for a treatment slot to open up, exacerbating the county's ongoing jail crowding problem. Others are released into the community to fight their addiction on their own.

The wait for treatment is usually several months, department officials said.

The waiting lists in Travis County are among the longest in the state and could hinder the probation department's ambitious overhaul of its practices.

Naturally, when a defendant is sentenced to probation for a drug offense, “treatment and counseling as recommended” is a condition of their supervision. This is so common in Austin that prosecutors simply write the acronym “TCAR” on their files as a part of their plea bargain recommendations. 

However, for felony charges, this often means that the defendant must “wait in jail until a bed opens up” in whatever treatment facility is “recommended”. The practical effect of this is to add long periods of incarceration to a defendant’s sentence, because not enough counseling options are available.

It’s a problem that only adequate funding can address, because, as the article points out, offenders released from jail immediately into community supervision (probation) often do not have their treatment needs met immediately, and re-offend prior to receiving counseling. This leads to an immediate filing of a Motion to Revoke Probation, with the defendant back in court.

The defense lawyer is then left to argue to the judge that the original sentence of prison should not be imposed, because the client is still in need of treatment. Of course, at this point, the judge is even more likely to leave the defendant in jail waiting treatment, which compounds our local jail overcrowding problems.

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The answer: forever, if you don’t affirmatively do anything about it.

One of my new found pleasures in starting this blog is that I am starting to get emails from folks who find the site on the internet, and email me various questions. This one came from a guy in El Paso, who had completed Deferred Adjudication probation almost ten years ago, and was surprised that a prospective employer asked him why he had not admitted to being arrested for marijuana possession.

Why was he surprised? Well, the criminal defense lawyer he hired hadn’t fully explained the consequences of his accepting a plea bargain of deferred probation for his marijuana arrest. The lawyer had simply told him, “It will be dismissed and off your record”.

I hear this all the time from clients.  Probably at least once a week.

Well, here’s the bad news. You had a crummy lawyer, one that in my opinion committed malpractice by not fully advising you of the consequences of your plea. The lawyer wasn’t necessarily bad for advising you to take the plea; it very well may have been the best option available. But he should have let you know all the repercussions so you would have made a truly informed decision.

Yes, if you successfully complete a deferred probation in Texas, it’s “technically” true that the case is “dismissed” at the end of the probationary period, and you were never convicted. But that does not mean that it’s “off your record”, at least in the sense that the general public understands that phrase.

What clients are (rightfully) concerned about it this: “Will anyone ever be able to find out that I was arrested for this offense?” Because, let’s face it, when future employers (or family, friends, nosy neighbors, whoever) find out that you’ve been arrested, they assume that you are guilty. Where there’s smoke there’s fire, right?

Fortunately, the law in Texas now allows probationers who complete deferred adjudication to apply for a Motion for Non-Disclosure. While it’s not as good as an Expunction, which complete erases the arrest from your record, it’s still a good option. Basically, Motions for Non-Disclosure seal your criminal history in a way that allows the State to keep the record (and therefore knows about it if you are ever rearrested), but is prohibited from disseminating the information to the public.

One last thing: obviously, since I practice in Austin, I wasn’t able to represent the guy who emailed me from El Paso. What I did do, however, was spend about ten minutes on the phone with him, to explain the situation to him. As a member of Texas Criminal Defense Lawyer’s Association, I have a list of qualified attorneys all over the state, and I was able to refer him to someone that I trust will handle his Motion for Non-Disclosure expeditiously, and at a fair price.

Please, if you are arrested somewhere in Texas outside of Austin, and stumble across this blog while “researching Texas criminal law”, feel free to call me or email me and I will be more than happy to either answer your question completely, or perhaps I’ll be able to refer you to a qualified attorney in your area that will be able to help you.

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It’s my pleasure (as a UT Law graduate myself) to point my readers to an excellent article in Tuesday’s Daily Texan titled “Probation may be a problem in Texas’ criminal justice system”. Kudos to Nolan Hicks and Ingrid Norton for the excellent reporting (maybe I didn’t scour the Texan enough, but honestly, I don’t remember the pieces being of this high quality back in my school days).

Scott Henson’s co-worker Ana Yáñez-Correa is quoted in the article:

"There are too many people for the officers to keep track," said Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition, a prison reform advocacy group. "Each probation officer has to look at 150 cases."

Texas has longer probation supervision than any other state in the country. The profits Texas receives from supervision fees provide an incentive for the state to maintain long probation periods, Yáñez-Correa said. She said there is a reluctance to let people off their probation early, even if they have complied with supervision restrictions.

"Probation profits from those on it," Yáñez-Correa said. "They don't let people off early."

Scott himself posted about this topic earlier this week. Quoting his post from the Sunset review earlier this week:

Probation fees make up about half of local probation departments' funding, said Bill Fitzgerald, director of the Bexar County Probation Department.

Senate Criminal Justice Committee Chairman John Whitmire asked whether that economic incentive caused departments to keep people on probation longer than necessary because they needed their fees.

"Definitely," replied Fitzgerald. He said his local judges agreed that was a factor and the need for probationers' fees made them reticent to use early release mechanisms for successful probationers.

Back to the Daily Texan article:

Tony Fabelo, a prison analyst who used to head Texas' Criminal Justice Policy Council, said the whole probation system must be rearranged to give priority to supervising violent offenders, rehabilitating drug users and making sure the rest comply with probation rules. He said right now there are too many (probationers) for officers to prioritize.

"We have a probation system that in general is badly organized," Fabelo said. "It's a big paperwork processing machine. They're not supervising these people."

Fabelo noted that Texas' supervision terms of up to 10 years are the longest of any state, contributing to high caseloads. The result is that not enough attention goes to new probates. With such long supervision periods, (probationers) also have more chances to mess up, he said.

Longer probations, even for first time possession of controlled substance offenses, than any other state, so that Texas can collect more in fees.  And then, not enough caseworkers and time spent for supervising serious offenders. 

Isn't it time we moved past the knee-jerk "do the crime, do the time" reactions we see when folks suggest reforming probation?

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