Probation Eligibility in Texas

 Posted on May 18,2008 in Uncategorized

A Texas judge can give deferred-adjudication probation to a person pleading guilty unless:

(1) the defendant is charged with an offense:(A) under Sections 49.04-49.08, Penal Code [DWI offenses]; or(B) for which punishment may be increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code [Drug-Free Zone], if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections;(2) the defendant:(A) is charged with an offense under Section 21.11 [Indecency With a Child], 22.011 [Sexual Assault], or 22.021 [Aggravated Sexual Assault], Penal Code, regardless of the age of the victim, or a felony described by Section 13B(b) of this article; and(B) has previously been placed on community supervision for any offense under Paragraph (A) of this subdivision; or(3) the defendant is charged with an offense under:(A) Section 21.02, Penal Code [Continuous Sexual Abuse of Young Child or Children]; or(B) Section 22.021, Penal Code [Aggravated Sexual Assault], that is punishable under Subsection (f) of that section [Victim Under 6 Years of Age or Victim Under 14 Years of Age and Use or Threat of Deadly Force or Drugs] or under Section 12.42(c)(3), Penal Code [Capital Habitual Aggravated Sexual Assault].

A Texas jury can recommend that the judge give "straight" (as opposed to deferred adjudication) probation to any person unless he:

(1) is sentenced to a term of imprisonment that exceeds 10 years;(2) is convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under Section 15(a);(3) does not file a sworn motion under Subsection (e) of this section or for whom the jury does not enter in the verdict a finding that the information contained in the motion is true;(4) is adjudged guilty of an offense for which punishment is increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections; or(5) is convicted of an offense listed in Section 3g(a)(1)(C), (E), or (H), if the victim of the offense was younger than 14 years of age at the time the offense was committed;(5) is adjudged guilty of an offense under Section 19.02, Penal Code [murder].(6) is convicted of an offense listed in Section 3g(a)(1)(D) [Aggravated kidnapping], if the victim of the offense was younger than 14 years of age at the time the offense was committed and the actor committed the offense with the intent to violate or abuse the victim sexually; or(7) is convicted of an offense listed in Section 3g(a)(1)(I) [Use of child in commission of drug offense].

It's a popular misconception in Texas, even among prosecutors, that (3) above applies to judge-ordered community supervision, and that a person with a prior felony conviction is ineligible for probation from the judge after a conviction (as opposed to deferred adjudication probation).

I think this misconception may arise, in Harris County, from the fact that judges uniformly require defendants to swear, as an ordinary part of the probation application process, that they have never been convicted or placed on probation for any felony offenses before (all of our judges practiced as lawyers [mostly prosecutors] before other judges who required the same... chicken or egg?).

In fact, this averment is not a legal requirement. A Texas judge can give "straight" probation, even without a jury's recommendation, to anyone receiving a sentence of less than 10 years for a "non-3g" offense. "Non-3g" offenses are those offenses not described in section 3g of Article 42.12 of the Texas Code of Criminal Procedure. A judge cannot, without a jury's recommendation, give straight probation:

(1) to a defendant adjudged guilty of an offense under:(A) Section 19.02, Penal Code (Murder);(B) Section 19.03, Penal Code (Capital murder);(C) Section 21.11(a)(1), Penal Code (Indecency with a child);(D) Section 20.04, Penal Code (Aggravated kidnapping);(E) Section 22.021, Penal Code (Aggravated sexual assault);(F) Section 29.03, Penal Code (Aggravated robbery);(G) Chapter 481, Health and Safety Code, for which punishment is increased under:(i) Section 481.140, Health and Safety Code [Use of Child in Commission of Drug Offense]; or(ii) Section 481.134(c), (d), (e), or (f), Health and Safety Code [Drug-Free Zones], if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections;(H) Section 22.011, Penal Code (Sexual assault); or(I) Section 22.04(a)(1), Penal Code (Injury to a child, elderly individual, or disabled individual), if the offense is punishable as a felony of the first degree and the victim of the offense is a child; or(I) Section 43.25, Penal Code (Sexual performance by a child); or(2) to a defendant when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court. On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment.

Otherwise a Texas judge can put a felony offender in prison. So the nonviolent second-time felony offender, even if she has a prior "pen trip" (prison stay), is not, by virtue of that status, rendered legally ineligible for probation. Whether the prosecutor will offer straight probation to a second-time offender is, of course, another question entirely, but one that should depend on the facts of the case and not a misunderstanding of the law.