Life After Sentencing: Early Release From Probation and Deferred Adjudication in Texas

Life After Sentencing: Early Release from Probation and Deferred Adjudication in Texas

By: Jason L. Van Dyke, Esq.

There is a reason people like me have a well-developed hatred for certain lawyers that happen to be more financially successful – and it’s certainly not because we resent their success or feel entitled to what they have. The real reason isbecause law is a profession where financial success has a nasty habit of leading to lawyer laziness. The truth is that any competent defense attorney has the intelligence to negotiate a reasonable plea agreement for a client that is unwilling to risk his freedom at a trial. Unfortunately, I do a whole lot of cleaning up messes led by lazy lawyers who don’t care whether the client ends up locked up on a motion to revoke/adjudicate only a few months after sentencing. All those lawyers do for their pay is fill out plea paperwork, and frankly, it’s an absolute travesty that people are doing time today because they were unfortunate enough to hire a lazy asshole with a good advertising campaign. These same lawyers cost their clients even more money by failing to tell them the kind of options they have after sentencing. This laziness by some lawyers can easily turn a case from white chocolate mousse into a big steaming pile of horse shit.

It’s of the utmost important to understand the difference between a probated sentence and a deferred adjudication. In the interest of turning over a case, most lawyers fail even to explain this to a client. The truth is that both sentences involve serving some time on probation. The beauty of a deferred adjudication is that you won’t be found guilty. You might be required to enter a plea of guilty but, with very few exceptions, the law doesn’t view a deferred adjudication as being the same as a conviction. That is because, when everything is said and done, the court’s order dismisses the case against the defendant. In cases involving deferred adjudication, you can also get what is called an order of non-disclosure, which will be the subject of a different article. The advantage of such an order is that most employers will be unable to find out about the offense through a most background check services. However, a deferred adjudication can be used against you if you find yourself in trouble again. It will also count against you for some professional licenses (the state nursing board is especially stringent) and for the process of obtaining a license to carry a handgun.

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What we commonly refer to as “straight probation” provides none of the advantages of deferred adjudication except for avoiding a lengthy jail or prison sentence. Except for very serious crimes, a person that is not already a convicted felon will usually be offered deferred adjudication instead of probation. I personally despise straight probation and will only advise it in cases where the defendant is ineligible for deferred adjudication due to the nature of the offense or a prior criminal record. I have, in cases where a client’s previous record tells me that they are unlikely to survive probation, encourage them to accept a short jail sentence instead of probation. Straight probation sresults in a criminal record that will be available to public for the rest of the client’s life (although the recently passed “second chance law” will provide some relief to a few first-time driving while intoxicated offenders). This is why the first question anyone should ask their lawyer when they are told that the state is offering probation is: “Can you clarify whether this is deferred adjudication or straight probation?” as this will often provide valuable insight as to whether the offer is a good one. If the lawyer responds that the offer is for straight probation, the client should direct their lawyer to go back and try to work out a deal for deferred adjudication. Never forget that the asshole you hired works for you and not the other way around.

Well over ninety percent (90%) of criminal cases are ultimately resolved by some sort of plea bargain. Do not be offended if your lawyer attempts to negotiate one because, frankly, it’s often a good idea. Why should he bother if you’re innocent? Because juries are stupid and, despite the fact that they convict innocent people all the time, they’re still the best system anyone has managed to come up with in the history of western civilization (although I do think trial by combat would make for compelling television). Some lawyers will never advise a client that swears innocence to accept any kind of plea deal. But clients need to do what is right for their own life. When considering what could be at stake in a trial, may very well make a reasonable decision to suffer for a few years on deferred adjudication than risk everything at trial (and put their family through the stress and uncertainty of a trial). Members of by audience are certainly intelligent enough to draw their own conclusions as to what the willingness of the innocent to enter guilty pleas in exchange for deferred adjudication says about the state of criminal justice in Texas.

Let us now consider a worst case scenario. An innocent person is wrongfully accused of falsifying a government record by a particularly evil and unethical district attorney from a small town about two hours to the southwest of Houston. He knows that the district attorney and the judges in the county are corrupt, but unlike them, he has a soul. The charge is punishable by a lengthy prison sentence, and he decides to accept an offer of deferred adjudication so that he can be assured of remaining in his home and being a Dad to children. An offer of three years of deferred adjudication is made and he takes it. He now believes that he will be on deferred adjudication probation for three whole years of his life, and he is absolutely, positively 100% wrong. The only reason he thinks this is because his lazy asshole lawyer failed to tell him about the conditions under which he could apply to the court for early release under Article 42A of the Texas Code of Criminal Procedure.

At the end of a sentence of deferred adjudication, a judge is required by law to dismiss the case against the defendant and discharge him from probation.This is common sense to most people. However, very few people know what else the code says:

“A judge may dismiss the proceedings and discharge a defendant before the expiration of the period of deferred adjudication community supervision if, in the judge’s opinion, the best interest of society and the defendant will be served, except that the judge may not dismiss the proceedings and discharge a defendant charged with an offense requiring the defendant to register as a sex offender . . . “

The judge can order a person on deferred adjudication released from community supervision at any time after the imposition of the sentence. He could do it next day if he really wanted to.What the attorney should have told his client in the hypothetical situation provided above is to pay all of his fines and court costs, as well as his other terms and conditions of probation, as quickly as possible. Why? Because a defendant that has taken his probation seriously and acted as a model probationer will sometimes get recommended by his probation officer for early release. The testimony of the probation office is almost always considered by a judge when deciding whether to grant early release, since all they really have left to do is to report once a month and stay out of trouble. I have had a few extraordinarily well-behaved clients released from four year terms of deferred adjudication in less than one year. This is quite rare and not typical of my results, but it has certainly happened.

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Is there a similar remedy available for straight probation? For many non-violent probationers, the answer is yes. The law allows a judge discretion to review a probationer after the completion of as little as one third of their sentence or two years (whichever is less). The only offenses for which a sentence of probation cannot be reduced are (a) driving while intoxicated; (b) offenses requiring registration as a sex offender; and (c) felonies described by Art. 42A.054 of the Texas Code of Criminal Procedure (these are very serious offenses). This means that, with a few exceptions, a sentence of three years on straight probation can be discharged, at the discretion of the judge, in as little as one year. The law further provides that after completion of one half of a sentence of probation or two years (whichever is more) the judge shall consider the defendant’s record and whether to reduce or terminate probation (provided that all of your fines, court costs, and other fees have to be paid in full and all court ordered counseling and educational programs are completed). A judge declining to grant early release to a defendant after this period of time is actually required to notify the defendant in writing of what he must do to satisfactorily complete any remaining terms. It is, in my view, malpractice for an attorney to fail to notify a client of these eligibility criteria for early release. There are probably thousands of Texas probationers (immediately eligible for early release) who are languishing in the system due to incompetent advice or lazy lawyers.

The most common exceptionto the rules I have recited in this article relate to one specific offense: driving while intoxicated. I speculate that this is because Mothers Against Drunk Driving (M.A.D.D.) has its headquarters in Texas and spends a great deal of money on political campaigns. I also speculate that the M.A.D.D. board members own stock in ignition interlock companies, as the requirement of an ignition interlock device is now a standard term and condition even for most first offense DWI cases.So, let’s say you fucked up and picked up a DWI. Since you are not eligible for early release, does this mean that you are stuck with that stupid and expensive ignition interlock for the entire term of your probation? Surprisingly, the answer is no. An ignition interlock device may be removed after one half of the term of probation is complete.This is why I give the same advice to DWI clients on probation for as I do for everyone else: “Relax. This is temporary. Be on your best behavior and do everything the court told you do. I will create an event on my calendar so we can petition the court for removal of the interlock just as soon as you are eligible.” I am also quick to point out that, although the law does not allow the termination of probation for driving while intoxicated offenses and others, it doesn’t prohibit the court from modifying certain terms and conditions of probation. A motion to modify the terms and conditions of community supervision can be filed at any time, and I will typically ask a court to convert a client to non-reporting probation at the same time I ask for removal of an ignition interlock. This saves the client a great deal of time and aggravation.

Finally, I will note that I have used the term “model probationer” somewhat often in this article. I stress the term again here. The truth is that I have met many probationers that are even bigger assholes than most lawyers (even me). There is very little that a lawyer can do about a probation officer that insists on acting like an asshole. The world is filled with assholes, and frankly, I am less surprised with each passing day to find most of them in the legal profession. This is something that a probationer must learn to accept and to tolerate with a mindset towards removing the asshole from his life as quickly as the law allows. For those that read my past few articles, the payment of fines and court costs is a great time to get out your credit card. While I prefer to avoid using credit cards, I’ve never had a client with more to fear from a credit card company than the State of Texas. The prompt payment of these charges, even if it has to be done by using a credit card, is a great way to show good faith to probation officer. Some of them will even ease up after a few months, provided that you’ve stayed out of trouble and followed the court’s orders to the letter.

I conclude this article with what is perhaps the most important piece of advice I can give: do not attempt any of the procedures described in this article by yourself. I will be writing future articles that not only discuss the process of obtaining a non-disclosure on a deferred adjudication, but even a little known procedure under which those who have been convicted of a crime and sentenced to straight probation could have the conviction itself overturned without the need for a pardon (through a very limited and difficult procedure called judicial clemency). Attempting to navigate the mess created by the legislature in Article 42A of the Texas Code of Criminal Procedure to save a few thousand bucks is stupid because your life is quite literally hanging in the balance. Instead, I encourage you to glorify the lawyer entrepreneur and hire one that knows what he’s doing if anything discussed in this article is applicable to you. Your rights depend on it. Uhuru!

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Jason L. Van Dyke is licensed to practice law in Texas, Colorado, Georgia and Washington D.C. He has been practicing in the areas of criminal defense, debt collection, and real estate law for ten years. He is a member of the Texas chapter of The Proud Boys and lives in Crossroads, Texas. The views expressed in this article are general in nature and should not be used or construed as legal advice for any specific situation