By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

The word probation is somewhat of a nonspecific term. In fact, probation is technically not even a correct term under Texas law; we are supposed to call it “community supervision.” Section 42 of the Texas Code of Criminal Procedure gives a very legalese definition of community supervision but the gist is that probation (community supervision) is a punishment for a jailable offense whereby the person does not have to go to jail. In lieu of confinement, a person on probation will be required to meet certain terms and conditions while supervised periodically for a specified period of time.

In Collin County there are essentially three types of probation: (1) straight probation, (2) deferred adjudication, and (3) pre-trial diversion. Each is very different and each has very different consequences.

Straight Probation

Straight probation is the simplest form of probation but also the least desirable. A large majority of misdemeanor cases begin with a straight probation recommendation from the prosecutor and an even larger majority of misdemeanor cases that are lost at trial result in straight probation. Similarly, many felony cases involve a recommendation of probation from the prosecutor.

When a person receives straight probation, they are placed on probation after being found guilty and convicted of an offense. Because of this, a person on straight probation has been sentenced to an underlying amount of jail time which has been “probated.” Provided that the person who is on probation (the “probationer”) abides by all the terms and conditions of probation, he or she will not be required to serve the underlying sentence. If, however, the probationer does commit a violation, probation can be revoked and the entire underlying sentence imposed.

Due to the fact that straight probation is a conviction, the law does not provide for any form of record clearing once straight probation is completed. Simply put, straight probation is on your record for life.

Violating terms and conditions of probation can prompt the State to file a probation revocation and have a warrant issued. A probationer arrested for a straight probation violation has no constitutional or statutory right to have a bond set while awaiting a hearing on the merits of the alleged violation. Some judges may agree to the setting of a bond in a straight probation revocation, but the decision is completely discretionary.

Deferred Adjudication

Deferred adjudication is probation without a finding of guilt or conviction. Unlike straight probation, a person can receive deferred adjudication only as the result of a guilty plea. When a person pleads to a recommendation of deferred adjudication, the judge accepts the plea but does not determine guilt nor does he convict. Instead, the judge will “defer adjudication” and place an individual on probation. Provided that all the terms and conditions of probation are complied with, at the end of probation, the case will be dismissed without a conviction.

Unlike straight probation, there is some criminal record relief for people who successfully complete deferred adjudication probation. Successful completion of deferred adjudication will ultimately trigger eligibility for a “nondisclosure.” A nondisclosure is a civil proceeding which seals the criminal record and prevents the general public (employers, neighbors, etc.) from viewing the record. In most misdemeanor cases, a nondisclosure can be filed once the case is dismissed. In felony cases there is a five-year waiting period from the date of dismissal. Nondisclosures are not automatic and generally do not prevent governmental entities from accessing the record.

Like straight probation, if a term or condition of deferred adjudication is not followed, the state may file a motion to adjudicate guilt and have a warrant issued. However, a probationer arrested for a violation of deferred adjudication has a constitutional and statutory right to have a bond set.

Deferred Prosecution

Deferred prosecution is an out-of-court agreed-upon probation between the prosecutor’s office and a person charged with an offense. In Collin County this is called pre-trial diversion. Pre-trial diversion is an option only through attorney negotiation with a prosecutor and approval by the probation office. There is no requirement for the judge to sanction an agreement for pre-trial diversion, nor is a person required to formally enter a plea of guilty. Simply put, pre-trial diversion is an agreement by the prosecutor to dismiss their case against you in exchange for accepting the normal sanction, terms and conditions of probation.

In addition to agreement to remove and ultimately dismiss the case from the court’s docket, the district attorney also agrees to allow any person who successfully completes pre-trial diversion to file for an expunction. An expunction is record-clearing device similar to, but better than, a nondisclosure. An expunged record is literally destroyed and the case essentially never happened.

If terms and conditions of pre-trial diversion are not complied with, the consequence is expulsion from the program. While no arrest warrant is issued, the prosecution is continued in the same manner as before but bolstered by a signed statement of guilt previously obtained as a condition of admission to the pre-trial diversion program.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.