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“Probation” Explained...

Drew Prisner July 25, 2022

Everyone has heard of the concept of “probation.” But, what exactly is it? How can it affect your criminal history? Are there different types? Will you have a final conviction on your record if you get “probation?” What happens if you mess up on “probation?” This blog entry will briefly explain the types/effects/results of this oft-misunderstood legal concept.

It’s best to start by identifying the different types of pleas that the public has historically lumped into the concept of “probation, ” which falls under the much broader category of “community supervision.” There are major differences between said pleas, and the following is a brief overview of those differences.

“Straight Probation”

This is the original concept of a person being placed under community supervision. In this scenario, a defendant in a criminal case is found guilty, either as a result of a jury or bench (judge) trial or as a result of a voluntary plea of guilty associated with a plea bargain agreement. This results in a final conviction that, in most cases, will remain on a defendant’s Texas criminal history forever. As a result of being found guilty, the judge places the defendant on straight probation community supervision in lieu of being sent to jail or prison. In other words, the defendant serves his/her sentence of incarceration in the community. Thus, the defendant avoids jail/prison time but must adhere to all the terms and conditions of community supervision that the judge has imposed. These can include random urinalysis, community service, classes, fees, fines, restitution, etc. Judges are very serious about their probationers strictly following the imposed terms and conditions of community supervision, so one would be wise to determine whether one can adhere to such terms and conditions BEFORE entering into a plea involving community supervision. If a violation occurs, the District Attorney’s Office can file a Motion to Revoke Probation, which will result in the issuance of a warrant for the probationer’s arrest. As a result of this, the probationer might find him/herself in the very jail or prison that he/she tried to avoid by taking the community supervision plea. So, diligence is paramount for success.

“Deferred Adjudication”

Deferred Adjudication Community Supervision is a cousin to straight probation. But, there are many more benefits to this type of plea. Like in the straight probation scenario, the defendant pleads guilty to the charge he/she is facing. The judge agrees to accept the guilty plea; however, the judge defers a finding of guilt for the duration of the period of community supervision. Similar to straight probation, there will be various terms and conditions to which the defendant must adhere. But...if the defendant successfully completes the period of deferred adjudication, the District Attorney’s Office will ultimately dismiss the case. In other words, the case does not end in a final conviction that will stain the defendant’s criminal record forever. And, in addition, as a result of a successfully-completed deferred adjudication, it is possible in many cases to “seal” the arrest through an Order of Nondisclosure, which is signed by the judge. This is quite helpful as future employers (in the private sector), banks, and apartment complexes, among other entities, will not be able to see that the defendant was at one time charged with the particular crime. However, as in the case of a straight probation, if the defendant messes up on his/her community supervision, the District Attorney’s Office can file a Motion to Adjudicate Guilt, which will result in the issuance of a warrant for the defendant’s arrest. If the violation is proven “true” in front of the presiding judge, the result can be a stint in a jail or prison.

“Pretrial Intervention” or “Pretrial Diversion”

Different jurisdictions use these terms interchangeably. While not technically a “probation,” this type of plea agreement does involve community supervision. In this scenario, the defendant enters into a contractual agreement with the District Attorney’s Office as an alternative to a formal plea agreement. Normally associated with non-violent misdemeanors, this type of disposition can extend into the world of felony charges on occasion. The advantage to a pretrial intervention/diversion is that the defendant doesn’t plead “guilty” to the offense; he/she simply takes responsibility for his/her actions. Some might say this is only a slight difference, but in the arena of criminal law, the difference is vast. As a result of a successfully-completed pretrial intervention/diversion, the defendant can petition the court system for an expunction, which is a legal avenue to get one’s arrest completely obliterated from the criminal records of Texas. As a result of an expunction that has been granted by the courts, a former defendant can deny that he/she has ever been arrested for that particular charge when filling out job applications, lease agreements, loan applications, etc. However, just as in the previous two (2) scenarios discussed above, there are consequences to the noncompliance of the terms and conditions of the agreement with the District Attorney’s Office. If it is found that the defendant violated a term or condition of the agreement, that agreement will be terminated, and the defendant will be back at “ground zero” fighting the case and facing its original range of punishment.

Community supervision can be a beneficial way to dispose of a case. In many instances, the defendant can avoid incarceration all together while paying his/her debt to society and moving on with life. However, as has been discussed above, it is not without its pitfalls and dangers. Each defendant must make a calculated decision as to what is best for him/her in any given case