Managing Attorney
Understanding Community Supervision and Deferred Adjudication
Felony charges in Texas carry serious penalties, and one of the most common questions defendants have is: “Can I get probation?” The answer depends on multiple factors, including the type of probation, the specific charge, and whether a judge or jury is deciding the sentence.
Understanding Probation Options: Why It’s Important to Talk to a Lawyer Early
Before discussing probation eligibility, it’s important to understand that there are two main types of probation in Texas: regular probation (also called community supervision) and deferred adjudication. Just because you are ineligible for one type of probation does not necessarily mean you’re ineligible for the other. For example, you may be disqualified from receiving regular probation from a jury (after being convicted after a jury trial, for example), you may still be eligible to receive a deferred adjudication probation from a judge before trial.
Also, deferred adjudication is only available if you plead guilty or no contest—you cannot receive deferred adjudication after a trial, even if you are found guilty and ask the judge for leniency. Straight probation may still be available in many cases, subject to many exclusions, which are discussed below. That’s why it’s essential to consult with an experienced criminal defense attorney who can assess all of your options based on the offense, criminal history, and strategic decisions about plea or trial.
Community Supervision (Regular Probation)
Community supervision allows a person to avoid serving time in prison if they comply with strict probation conditions. There are two ways this can be granted:
1. Judge-Ordered Probation
Under Article 42A.053 of the Texas Code of Criminal Procedure, a judge may suspend a sentence and place a defendant on probation if:
- The sentence does not exceed 10 years, and
- The offense is not on the list of ineligible crimes.
A judge cannot grant probation if the person is convicted of:
- Murder (PC §19.02)
- Capital Murder (PC §19.03)
- Aggravated Kidnapping (PC §20.04)
- Indecency with a Child by Contact (PC §21.11(a)(1))
- Sexual Assault (PC §22.011)
- Aggravated Sexual Assault (PC §22.021)
- Aggravated Robbery (PC §29.03)
- Injury to a Child, Elderly or Disabled Individual (PC §22.04) if it is a first-degree felony involving a child
- Any offense involving a deadly weapon (Art. 42A.054), if the defendant used or exhibited the weapon or was aware that one would be used
2. Jury-Recommended Probation
Under Article 42A.055, a jury may recommend probation if:
- The sentence does not exceed 10 years
- The defendant has no prior felony convictions, and
- The defendant requests probation in writing before trial
However, a jury cannot recommend probation for:
- Capital Murder (PC §19.03)
- Any offense with a deadly weapon finding
- Repeat sexual offenses, including Aggravated Sexual Assault with a prior conviction
- Continuous Sexual Abuse of a Child (PC §21.02)
- Solicitation of Capital Murder (PC §15.03)
Deferred Adjudication
Deferred adjudication is an alternative form of probation available only through a judge (not a jury). Unlike regular probation, it allows a defendant to avoid a final conviction on their record if they complete the probation successfully.
How It Works
- The defendant pleads guilty or no contest
- The judge defers a finding of guilt and places the defendant on probation
- If completed successfully, the case is dismissed
- If the defendant violates probation, they may be sentenced up to the maximum punishment allowed by law
Ineligible Offenses
Under Article 42A.102, deferred adjudication cannot be granted for:
- Murder (PC §19.02)
- Capital Murder (PC §19.03)
- Continuous Sexual Abuse of a Child (PC §21.02)
- Aggravated Sexual Assault (PC §22.021) involving a victim under age 6 or causing serious bodily injury
- Sexual Assault or Aggravated Sexual Assault (PC §22.011, §22.021) with a prior conviction
- Indecency with a Child (PC §21.11)
- Sexual Performance by a Child (PC §43.25)
- Prohibited Sexual Conduct (PC §25.02)
- Burglary with Intent to Commit a Sexual Offense (PC §30.02)
- Certain repeat felony offenses under Art. 42A.102
- Any felony enhanced under Drug-Free Zone laws (HSC §481.134)
- All DWI offenses, including Intoxication Assault and Intoxication Manslaughter (PC §§49.04, 49.07, 49.08)
Important: Deferred adjudication is not available if you go to trial and lose. It must be part of a plea agreement with the judge before trial begins.
Probation for Violent Crimes
Felonies That May Qualify for Probation
- Aggravated Assault (PC §22.02) – May be eligible, especially through jury recommendation
- Robbery (PC §29.02) – Case-specific eligibility
- Some Domestic Violence Offenses – Depends on prior history and whether a deadly weapon was involved
Felonies That Are Not Eligible
- Murder, Capital Murder
- Aggravated Robbery, Aggravated Sexual Assault
- Any offense involving a deadly weapon
- Repeat or aggravated child sexual offenses
Probation Conditions in Texas
If granted probation, you will likely be required to:
- Report regularly to a probation officer
- Submit to random drug and alcohol testing
- Complete community service hours
- Avoid any new arrests or charges
- Attend counseling or treatment programs
- Pay court costs, fines, and restitution
Failure to comply may result in revocation and incarceration.
How a Criminal Defense Attorney Can Help
A knowledgeable attorney can:
- Assess your eligibility for any form of probation or deferred adjudication
- Identify legal arguments to preserve your eligibility
- Work to reduce charges to probation-eligible offenses
- Advocate for alternative sentencing or pretrial diversion where available
Conclusion
Whether you’re eligible for probation in a Texas felony case depends on the type of probation, the nature of the offense, and the specific facts of your situation.
- Some charges disqualify you from judge-ordered probation, but may still allow for jury-recommended probation.
- Deferred adjudication could be an option—but only if you enter a plea before trial, not after a conviction.
At Ceja Law Firm, we help clients understand and fight for every available option. Jose Ceja is a Board-Certified Criminal Law Specialist, a former prosecutor, and has been recognized as a Texas Super Lawyer. With deep experience in both felony and misdemeanor cases, he provides strategic, personalized defense to protect your freedom and your future.
Call today for a confidential consultation. Let us help you explore your best path forward.
