Probation, Deferred Adjudication, Shock Probation and Pre-Trial Diversion
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Prior to 1913 there were on two sentencing options in Texas: a judge could sentence a defendant to prison or a jury could recommend that no sentence be imposed. The Texas Court of Criminal Appeals in 1913 upheld a Suspended Sentence Act which essentially provided that Article III, Section 1, of the Texas Constitution permits the legislature to authorize suspended sentences without infringing upon the Governor’s pardon powers. Four years later Texas voters enacted Article 4, Section 11A of the Constitution, providing that the Courts of the State of Texas would have original jurisdiction in all criminal cases with the inherent power to suspend sentences and place defendants on probation.
The Legislature has tinkered with its probation statutes before the current probation statute, Section 42 of the Code of Criminal Procedure, was enacted in 1965: a second Suspended Sentence Act was enacted in 1925, and the Adult Probation and Parole Law was enacted in 1947 and again in 1957 which brought about the repeal of the second Suspended Sentence Act in 1957. The end result is that Art. 42.12, Section 2(1) granted exclusive jurisdiction to the courts of original criminal jurisdiction to impose probation.
Today, Texas law defines probation as “community supervision.” In most other states this kind of non-imprisonment release is still referred to as “probation.” But our legislature in 1993 officially changed the term “probation” to “community supervision”—even though most people still refer to it as probation. Article 42.12, Section 2(2), defines “community supervision” as the placement of an offender by a court “under a continuum of programs and sanctions, with conditions imposed by the court for a specified period of time in which: (A) criminal proceedings are deferred without an adjudication of guilt; or (B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or part.” The “continuum of programs” was added to the statute in 1989, although the legislature has never clearly defined what those “programs” are.
Community supervision comes in three categories: regular (or “straight”) probation, deferred adjudication and “shock” probation. Most guilty verdicts in misdemeanor cases, whether through guilty plea or guilty verdict following trial, result in probation—often at the recommendation of the prosecution. Probation must be imposed by the judge, although the jury can recommend it—a recommendation the judge is bound to accept.
Section 3 of Art. 42.12 authorizes a judge, in the best interest of justice, to impose straight probation in all felony cases in which the punishment does not exceed ten years. This unfettered discretion allows the judge in first, second, and third degree felonies to fix the term of probation so long as it is not greater than 10 years or less than the minimum prescribed for the offense. For example, if the judge grants probation in a sex offense in which the victim is younger than 17, the minimum term of community supervision must be five years. And in Class A or B misdemeanor cases, the maximum period of probation is two years with no minimum term of probation. Most significantly, however, is that a judge cannot grant probation for the following offenses:
- capital murder
- aggravated sexual assault
- sexual assault
- indecency with a child by contact
- aggravated kidnapping
- aggravated robbery
- sexual performance by a child
- first-degree injuries to a child
- continuous sexual abuse of a child (the minimum penalty for this offense is 25 years)
- when a deadly weapon was used or exhibited during of a felony offense or flight there from, and
- Certain drug offenses in drug-free school zones when the accused has a prior criminal history for the same offense.
A jury’s authority to recommend probation is likewise severely limited. Section 4(a) of 42.12 authorizes a jury to recommend probation under two conditions: (1) the defendant must not have been convicted of any of the following offenses:
- indecency with a child if the victim is younger than 14
- aggravated sexual assault if the victim is younger than 14
- sexual assault if the victim is younger than 14
- aggravated kidnapping with the intent to violate or abuse the victim sexually if the victim is younger than 14
- sexual performance of a child or
and (2) if the punishment assessed by the jury does not exceed ten years.
Thus, a jury can recommend probation for the aforementioned sexual offenses if the victim is 14 or older so long as its recommended punishment does not exceed ten years. It must also be remembered that while judge must accept a jury’s recommendation, the judge is the final authority as to what the length of probation will be as well as others conditions to which the defendant must comply. Finally, the jury’s authority to recommend probation exists only after the offender files a sworn motion for probation stating that he has never been convicted of a felony in either Texas or any other state.
Any sentence of probation attaches certain “terms and conditions,” more commonly known as “T&Cs.” For example, electronic monitoring, regular drug/alcohol urinalysis, safety-locks in DWI cases, restricted contact with children in abuse and sex-related offenses, etc. The judge has absolute discretion in the nature of the T&Cs—they are generally determined by the nature of the offense. Thus, probation is not a “get out of jail free” card. If the offender violates any of the T&Cs, he/she can have their probation revoked and be required to serve the original sentence without receiving credit for any time spent on probation in the free community.
“Community supervision” has two other components: deferred adjudication and “shock” probation. Art. 42.12, Section 5, provides that when it is in the best interest of society, the judge may after a plea of guilty or nolo contendere defer further proceedings without an adjudication of guilt and place the defendant on probation. In effect, an adjudication of guilt is held in abeyance for the period of probation to see if the offender adheres to all the T&Cs of the probation order. If he does, the case will be dismissed without a conviction. The fundamental difference between straight probation and deferred adjudication is that punishment is assessed but not imposed in straight probation while in deferred adjudication cases punishment is not even assessed. This is a critical difference because upon revocation of probation the judge can assess any term of confinement up to the maximum allowed by law.
The period of deferred adjudication cannot exceed ten years in felony cases or two years in misdemeanor cases. However, under Ar. 42.12, Section 5(a), a defendant charged with indecency with a child, sexual assault, or aggravated sexual assault (regardless of the age of the victim), or any sex offense with a child under age 17 deferred adjudication probation must not be less than 5 years. Deferred adjudication community supervision in these cases can only be imposed when the judge makes a finding in open court that probation is in the best interest of the victim.
An offender is not eligible for deferred adjudication when he is charged with any of the following of what is known in Texas as “3g offenses” under Article 42.12:
- Aggravated sexual assault punishable as a capital offense;
- Continuous sexual abuse of a young child or children;
- Aggravated sexual assault if the victim of the offense is younger than six years;
- Aggravated sexual assault if the victim is younger than 14 and if the offender: 1) causes serious bodily injury or death; 2) places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted; 3) by acts or words occurring in the presence of the victim threatens to cause death, serious bodily injury or kidnapping of any person; 4) uses or exhibits a deadly weapon; 5) acts in concert with another who engaged in sexual assault; or 6) administers or provides flunitrazepam to the victim with the victim with intent of facilitating the commission of the offenses
- An offense under Sections 49.04 – 49.08, Penal Code(certain intoxication offenses including DWI); or
- Indecency with a child, sexual assault, aggravated sexual assault, regardless of the age of the victim, or a felony described by Section 13B (b) of Article 42.12 and has previously been placed on community supervision for indecency with a child, sexual assault, aggravated sexual assault, regardless of the age of the victim, or a felony described by Section 13B (b) of Article 42.12.
“Shock” probation is governed by Art. 42.12, Section 6(a), which provides that in cases requiring imprisonment, the sentence shall continue for 180 days from date of imposition. Before the expiration of the 180 days, the judge sua sponte, or on a motion by the prosecution or defendant, may suspend further execution of the sentence and place the defendant on probation. To be eligible for this benefit, the defendant (1) must otherwise be eligible for community supervision; and (2) must never before have been incarcerated in a penitentiary for commission of a felony. And the defendant automatically become ineligible for “shock” probation once the 180-day period has expired.
A distant cousin to these three forms of community supervision pre-trial diversion. This is a joint agreement between the prosecution and defendant’s attorney to place the defendant on pre-trial probation, provided the local probation office accepts the agreement. In effect, once the offender accepts the normal T&Cs of probation and completes the term of supervision, the prosecution will dismiss the charges. This is an informal agreement, not requiring the judge’s approval or a judicial guilty plea by the defendant. Inherent in this agreement is the defendant’s ability to file for expunction (a record-clearing mechanism) of the criminal charge. The record is then destroyed as though it never existed.
Seeking and securing community supervision, with reasonable terms and conditions, is not an easy task in Texas. But it can be achieved with dedicated representation by defense counsel.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization
NOTE: Additional information about community supervision can be found at: