The following is a very quick overview of the different types of probation and how they work. The types of probation available, the conditions that must be assessed, when it can be sealed, and when a motion to early terminate can be filed varies depending on the offense you are placed on probation for. It can be very complicated if you choose to represent yourself in a hearing on motion to proceed to final adjudication or motion to revoke.
Probation is where the Judge or Jury sentences a defendant to incarceration in a jail (misdemeanor offenses) or prison (felony offenses) but suspends that sentence for a period of time (months or years in misdemeanors) or for a number of years (felony offenses).
If a defendant receives probation from a judge or jury, the Judge will assess conditions of probation. Those conditions will most likely include the payments of monthly supervision fees, random UA’s, court costs, and a one time crime stoppers fee. Depending on the offense, the court can order the defendant to perform community service, assess a certain number of days in jail as a condition of probation (which is served day for day), that the defendant not associate with certain people, not possess a firearm, not consume alcohol or drugs, and that the defendant attend certain classes.
If a defendant is granted probation on a DWI case, depending on the BAC and whether this is a first, second or third DWI, the Court can order a license suspension, an ignition interlock, DWI education classes and a number of days in jail as a condition of probation.
There are some offenses where the defendant cannot receive probation, such as, continuous sexual assault of a child, murder and capital murder. Additionally, you cannot receive probation if the judge or jury assesses your sentence at longer than ten (10) years in the penitentiary. There are two types of probation that a defendant can receive in Texas.
Deferred adjudication probation occurs when the defendant pleads guilty to a crime, but the judge defers finding the defendant guilty, and instead places him or her on probation for some term. If the defendant completes probation, the case is dismissed. If it is alleged, in a motion to proceed to final adjudication, that the defendant violated probation and the prosecutor proves it by a preponderance of the evidence, then the judge can find the defendant guilty, based on the previous plea of guilty, and sentence the defendant within the full range of punishment.
With some exceptions for certain offenses, a defendant can file a motion to early terminate a deferred probation once he or she has completed the conditions of probation assessed by the Judge. A motion to early terminate can be filed at any time during the term of the probation.
If the defendant completes probation and the case is dismissed, with some exceptions (murder, sexual offenses, injury to a child), the defendant can file an order of non-disclosure. If granted, this will seal the records of the arrest and probation from the public. However, the information will always be available to law enforcement should they ever search for it.
Straight or adjudicated probation occurs when the defendant pleads guilty, or is found guilty, of the crime, and jail time, in the case of a misdemeanor, or ten (10) years or less in prison, in the case of a felony, is assessed, but the judge or jury suspends imposition of incarceration, and imposes some term of probation. If the defendant successfully completes the probation, he or she will have a felony conviction. If the defendant violates probation, and the prosecutors prove it in a revocation hearing by a preponderance of the evidence, the Judge can revoke the probation and assess the sentence up to the term of incarceration he assessed when he placed the defendant on probation.
You can file a motion to early terminate an adjudicated probation, but you must have completed a specified percentage of your probation depending on whether it’s a felony or misdemeanor.
If the prosecutors move to revoke your probation based on the allegation that you committed a new offense, they must prove by a preponderance of the evidence, in the revocation hearing, that it is “true” you committed the new offense. If the prosecutor does this, he can still prosecute you for the new offense. If the prosecutor alleges a new offense in the motion to revoke probation, but the judge finds that he has not proven it by a preponderance of the evidence, the prosecutor would be barred by “collateral estoppel” from prosecuting you for the new offense.
You cannot expunge any case where probation was granted.
This is a quick overview of how probation, motion to proceed to final adjudication, and motions to revoke probation work. It can be very complicated if you decide to represent yourself. If the prosecutors are attempting to revoke your probation do not attend your probation revocation hearing alone. Call Attorney Matt Bingham immediately to get the support and defense you need.