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How Does Probation Work?

Criminal Law Blog by The Law Office of Greg Tsioros

How Does Probation Work?

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Probation is an alternative to a jail sentence. The offender, or person convicted of a crime, is allowed to remain free and follow rules, policies and procedures outlined by a judge. A judge may sentence the offender to serve a short time in jail, then their remaining sentence on probation.

Probation isn’t the same as parole. Parole is different sentence option where an offender serves all or part of their sentence before they are released. An offender who receives parole after receiving a prison sentence. However, a parolee, or offender paroled, can receive probation after their release.

A judge can sentence an offender to probation for months or specific number of years. In some situations, probation can be shortened. An offender may petition the court to be released from their probation conditions early. The final decision is up to the judge.


Probation Conditions Vary According to the Crime and Offender

Two people can commit the same crime and not receive the same probation conditions. Probation rules differ from case to case and person to person. A judge can sentence an offender to one or a combination of the following:

  • Counseling
  • Community service
  • Fines
  • Jail time
  • Restitution
  • Reporting to a probation officer
  • Meet all alcohol and drug restrictions
  • Meet all weapons restrictions
  • No traveling out of state
  • Avoiding specific people and areas like friends an offender use to hang out with or a troubled neighborhood

Probation Can be Revoked if an Offender Doesn’t Follow Conditions

Probation violation occurs when an offender doesn’t follow one or more conditions of their probation. For example, they may not meet with their probation officer or not attend mandatory alcohol or drug classes. The consequences of violating probation depends on:

  • Whether the offender has any prior violations
  • The seriousness of the violation
  • The nature of the violation
  • Whether the violation made the situation worse
  • Probation Violation Process

No jurisdiction has set rules for what happen after an offender violates probation. A probation officer has discretion to issue the victim a warning or get the court involved. If the probation officer decides to make the offender appear at a probation violation hearing the follow may happen:

  • The court makes a determination on the probation violation. A prosecutor must prove by a preponderance of the evidence that the offender most likely violated probation. Preponderance of the evidence is a lower standard the beyond reasonable doubt. A prosecutor doesn’t have to convince a judge probation was violated, just that there’s a 50 percent chance they did. Beyond a reasonable doubt isn’t used because a probation hearing is a criminal case.
  • During the hearing the offender’s attorney will present evidence to refute the probation violation charge. Sometimes the state and offender’s attorney may negotiate a resolution to avoid the judge making a decision. After hearing both sides the judge will make a decision. The judge doesn’t always find in the state’s favor.
  • The offender may be sentenced. If a judge finds in the state’s favor, they will based the punishment on factors like the severity of the violation and if it was the first violation. The sentence may range from probation revocation, serving a brief time in jail or addition conditions.

Serving Probation in Texas

Texas has two forms of probation: deferred adjudication and straight probation. Deferred adjudication, also called community supervision, is outlined in the state’s Code of Criminal Procedure 42A.101 to 42A. An offender may be sentenced to community supervision for one to 10 years.

Deferred adjudication gives an offender the opportunity to keep the criminal charge off their record and avoid incarceration. If the offender successfully completes the probation, their case is dismissed and the conviction will never appear on their criminal record. The arrest will appear on their criminal record, but they may be eligible for expungement. To expunge a record means to have the arrest sealed via a petition for non-disclosure.

Straight probation is similar to the probation described ealier. A judge sentences an offender to probation immediately after they are found guilty. Both community supervision and straight probation have the same set of conditions like meeting a probation officer.

Texas Limits Probation Eligibility

Not every offender is eligible for either forms of probation in Texas because it’s not offered for certain crimes. The state refers to these probation ineligible offenses as the “3g offenses.” The offenses are:

  • Murder
  • Capital murder
  • Injury to a child
  • Aggravated sexual assault
  • Sexual performance with a child
  • Aggravated robbery
  • Felony criminal solicitation
  • Drug crimes committed near schools
  • Indecency with a child
  • Trafficking of persons
  • Burglary
  • Compelling prostitution

Straight Probation and Deferred Adjudication Revocation

If an offender violates probation in Texas, their probation officer may issue a warning or make them appear in court. Failure to comply with probation conditions may result in the judge ending the probation. A judge has a wider range of punishment available if an offender is on deferred adjudication than straight probation. If straight probation is revoked, the offender can complete the remaining portion of their jail sentence.

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