All Class B misdemeanors and above in Texas carry possible jail sentences. Even where people are convicted or plead guilty, however, probation is often an option. No attorney can guarantee you a certain result with getting on probation (or community supervision as it’s known). Calculating probation eligibility can be complicated to figure out.
For a quick reference, probation eligibility and deferred adjudication eligibility are governed by Tex.Code.Crim.P. 42.12.
A judge can place any person on community supervision (probation) for a misdemeanor offense regardless of criminal history. This includes DWI (1st and 2nd), theft below $1,500, possession of marijuana (under 4 oz.), and assault causing bodily injury. This can be done during a guilty plea or at trial — by selecting the judge over the jury for punishment. For a jury to give community supervision during a trial, for a misdemeanor or a felony, the defendant must file prior to the trial, a sworn application stating they have not been convicted of a felony offense in Texas or any other state.
Felony offenses where a judge cannot give probation include (but aren’t limited to): capital murder, murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, aggravated robbery, first-degree injury to a child or elderly person and certain drug offenses in drug-free school zones where there has been a prior similar record. Upon conviction juries also cannot make a binding recommendation for probation on some, but not all, of these offenses. This means on some offenses, a jury can give you probation where the judge cannot.
Whether or not people are eligible for deferred adjudication for some of these offenses is a different matter. Deferred adjudication is a different form of community supervision. To get deferred on anything, the defendant must plead guilty. This article is mainly geared at persons that have a trial on the merits.
Judges can order jail time as a “term and condition” of community supervision (typically called T & C time) which means that the individual must complete the a jail sentence to be allowed to proceed on community supervision. Those times are not to exceed 30 days in a misdemeanor or 180 days in a felony.
It is extremely important to note that in felony offenses, eligibility for probation and/or deferred can be very complex and complicated. It is always best to consult an attorney about specific circumstances.
Jeremy F. Rosenthal, Esq.
*Jeremy F. Rosenthal is an attorney licensed in Texas. Nothing in this article is intended to be legal advice. For legal advice you should specifically consult an attorney.