Probation vs. Deferred Adjudication

These may look similar but they are two different things with different consequences.


Probation (aka Community Supervision) is a conviction with a suspended sentence.  As long as the probationer complies with his conditions of probation, the sentence will stay suspended and he will not have to go to jail.    But it is a conviction for many purposes.  It creates a permanent record regardless of the ultimate outcome of the probation.  The good part is that if probation is revoked, the sentence is limited to the length of the term of probation.  In other words, if the range of punishment for the crime is between two and twenty years, and a person gets six years probation, upon revocation he can only get a maximum of six years to serve.

Deferred Adjudication is different.   The judge accepts a guilty plea, but does not find the person guilty.  Instead, the charge is still pending and the person is placed on conditions that look just like probation.

Advantages:  The good part is that if the deferred adjudication is successfully completed, there will not be a conviction and many times the record can be sealed (non-disclosure).   And while on deferred adjudication, the person can truthfully say he has not been convicted.

The Disadvantage:    The bad side is that if deferred is revoked, the entire range of punishment is open.   In other words, if the range of punishment for the crime is between two and twenty years, and a person gets six years deferred adjudication, upon revocation he can get anywhere between to and twenty years to serve.

In short, deferred adjudication is better . . . . but only if you can do it successfully.


Deferred adjudication is also not available if a person pleads not guilty and goes to trial.

Probation Eligibility in Texas

Probation, also known as Community Supervision, (i.e. a suspended sentence) is a possibility for most crimes in Texas.  However, the Legislature has made it such that the Judge cannot grant probation for a number of crimes, among them the following:


Murder

Capital Murder

Indecency with a Child

Aggravated Kidnapping

Aggravated Sexual Assault

Aggravated Robbery

Certain drug offenses, if a child is used in the commission of the offense, or if the offense is committed in a drug-free zone

Criminal Solicitation

Sexual Assault

Injury to a Child

Sexual Performance by a Child

Compelling Prostitution

Trafficking of Persons
 
And, in addition, any felony in which a deadly weapon is used or exhibited.


Parole consequences

Not only can the Judge not grant probation, but a person convicted has to serve a minimum of two years or one-half the sentence assessed, whichever is greater, before becoming eligible for parole.


As you can see the penalties for these cases are very serious indeed, and require a lawyer with experience defending against them.   

Ordinary Conditions of Probation in Texas

The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.  Conditions of community supervision may include, but shall not be limited to, the conditions that the defendant shall:

(1)  Commit no offense against the laws of this State or of any other State or of the United States;

(2)  Avoid injurious or vicious habits;

(3)  Avoid persons or places of disreputable or harmful character, including any person, other than a family member of the defendant, who is an active member of a criminal street gang;

(4)  Report to the supervision officer as directed by the judge or supervision officer and obey all rules and regulations of the community supervision and corrections department;

(5)  Permit the supervision officer to visit the defendant at the defendant's home or elsewhere;

(6)  Work faithfully at suitable employment as far as possible;

(7)  Remain within a specified place;

(8)  Pay the defendant's fine, if one is assessed, and all court costs whether a fine is assessed or not, in one or several sums;

(9)  Support the defendant's dependents;

(10)  Participate, for a time specified by the judge, in any community-based program, including a community-service work program under Section 16 of this article;

(11)  Reimburse the county in which the prosecution was instituted for compensation paid to appointed counsel for defending the defendant in the case, if counsel was appointed, or if the defendant was represented by a public defender's office, in an amount that would have been paid to an appointed attorney had the county not had a public defender's office;

(12)  Remain under custodial supervision in a community corrections facility, obey all rules and regulations of the facility, and pay a percentage of the defendant's income to the facility for room and board;

(13)  Pay a percentage of the defendant's income to the defendant's dependents for their support while under custodial supervision in a community corrections facility;

(14)  Submit to testing for alcohol or controlled substances;

(15)  Attend counseling sessions for substance abusers or participate in substance abuse treatment services in a program or facility approved or licensed by the Department of State Health Services;

(16)  With the consent of the victim of a misdemeanor offense or of any offense under Title 7, Penal Code, participate in victim-defendant mediation;

(17)  Submit to electronic monitoring;

(18)  Reimburse the compensation to victims of crime fund for any amounts paid from that fund to or on behalf of a victim, as defined by Article 56.32, of the defendant's offense or if no reimbursement is required, make one payment to the compensation to victims of crime fund in an amount not to exceed $50 if the offense is a misdemeanor or not to exceed $100 if the offense is a felony;

(19)  Reimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense;

(20)  Pay all or part of the reasonable and necessary costs incurred by the victim for psychological counseling made necessary by the offense or for counseling and education relating to acquired immune deficiency syndrome or human immunodeficiency virus made necessary by the offense;

(21)  Make one payment in an amount not to exceed $50 to a crime stoppers organization as defined by Section 414.001, Government Code, and as certified by the Texas Crime Stoppers Council;

(22)  Submit a DNA sample to the Department of Public Safety under Subchapter G, Chapter 411, Government Code, for the purpose of creating a DNA record of the defendant;

(23)  In any manner required by the judge, provide public notice of the offense for which the defendant was placed on community supervision in the county in which the offense was committed; and

(24)  Reimburse the county in which the prosecution was instituted for compensation paid to any interpreter in the case.

These are only the ordinary conditions of probation a Texas court may impose.   Different offenses may require specialized conditions, and the judge can and probably will impose additional "customized" conditions.  

Penalties for Delivery of Marijuana

For delivery of marijuana, or possession of marijuana with intent to deliver, the penalties depend on the amount of marijuana:

Misdemeanor:

Up to one year in jail if the amount of marihuana delivered is one-fourth ounce or less and the person committing the offense receives remuneration for the marihuana.

Felonies:

From 180 days to two years in a state jail if the amount of marihuana delivered is five pounds or less but more than one-fourth ounce;

Two to 20 years in prison if the amount of marihuana delivered is 50 pounds or less but more than five pounds;

Five years to 99 years, or life imprisonment, if the amount of marihuana delivered is 2,000 pounds or less but more than 50 pounds; and

Life or for a term of not more than 99 years or less than 10 years, if the amount of marihuana delivered is more than 2,000 pounds.

Penalties for Possession of Marijuana

The possible penalties depend on the amount of marijuana possessed.


Misdemeanors:

Up to 180 days in jail if the amount of marihuana possessed is two ounces or less;

Up to one year in jail  if the amount of marihuana possessed is four ounces or less but more than two ounces;

Felonies:

From 180 days to two years in state jail if the amount of marihuana possessed is five pounds or less but more than four ounces;

From two to 10 years in prison if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;

From two to twenty years in prison if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and

For life or for a term of not more than 99 years or less than 5 years, if the amount of marihuana possessed is more than 2,000 pounds.


In addition, there may be other consequences such as loss of driver's license, loss of educational benefits, immigration problems, and the like.

Bath Salts are Illegal in Texas

In 2011, Governor Perry signed House Bill 2118 into law, which bans the synthetic drugs commonly referred to as “Bath Salts”."  These chemicals were legal to possess and sell but are now outlawed.

Several chemicals were made illegal.    Two of the common active ingredients in “Bath Salts” are Mephedrone and Methylenedioxypyrovalerone, also known as MDPV.

 The penalties for possession of these “bath salts” are all felonies, depending on the amount possessed.  There are enhanced penalties if the accusation is possession with intent to deliver or delivery of bath salts.

Consequences of a felony conviction in Texas

In addition to possible fines and imprisonment, there are long-term, even life-long, consequences to a felony conviction in Texas:

1.   Loss of the right to possess firearms or ammunition.

2.  Possible restrictions on foreign travel, including revocation of a passport.

3.  Loss of the right to vote and serve on a jury.

4.  Loss of, or ineligibility for, licenses for professional or otherwise regulated employment, such as:


Lawyers
Doctors, dentists, nurses, opticians, physical therapists
Psychaitrists, sychologists, clinical social workers, certain types of counselors,
Veterinarians
Barbers and cosmetologists
Construction workers such as plumbers, electricians, HVAC, irrigation, fire protection
Certified public accountants (CPA)
Insurance agents
Private security such as watchmen or security guards
Pawnbrokers
Bail bondsman
Real estate brokers, appraisers, salesmen

These are just some of the licenses which can be denied a person with a prior felony conviction.

5.  Dismissal or exclusion from employment by state or local government offices.

6.  Dismissal or exclusion from private-sector employment.

7.  Ineligibility for student loans or grants (drug convictions).

8.  Ineligibility to volunteer for charitable organizations (Boy Scouts, Little League, etc.).

9.  Difficulty leasing an apartment or house.

10.  Social problems resulting from your reputation being damaged by a public record for a felony.

11.  Forfeiture of assets, especially in drug cases.

12.  Immigration consequences, if one is not a citizen, including deportation, exclusion and denial of naturalization.

13.  Loss of driver's license for drug cases and certain other crimes. 

14.  Loss of the right to hold public office.

15.  Consequences related to child custody.   


This list is not all-inclusive, and there are other disabilities and difficulties that can and probably will arise from a felony conviction.    

You need a lawyer who can help you avoid these consequences.