CCP Ch. 42A. Deferred Adjudication

WHAT IS DEFERRED ADJUDICATION IN TEXAS?

As an alternative to a prison sentence, Texas law allows an accused to be on “community supervision.” The two types of community supervision are post-conviction community supervision (commonly referred to as “probation”) and deferred adjudication. Deferred adjudication, once successfully completed, does not result in a criminal conviction.

Only a person who pleads guilty or nolo contendere (“no contest”) before a judge may be placed on deferred adjudication. The judge does not find the person guilty at that time, but may do so at a later date if the person violates any conditions of deferred adjudication. Unlike probation, a person who violates deferred adjudication conditions may be found guilty and sentenced up to the maximum prison time.

WHAT IS THE DEFERRED ADJUDICATION LAW IN TEXAS?

Tex. Code Crim. Proc. art. 42A.001(1)

“Community supervision” means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which:

1. criminal proceedings are deferred without an adjudication of guilt; or
2. a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.

Tex. Code Crim. Proc. art. 42A.101. Placement on Deferred Adjudication Community Supervision.

(a)  Except as provided by Article 42A.102(b), if in the judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt and place the defendant on deferred adjudication community supervision.

(b)  After placing the defendant on deferred adjudication community supervision under Subsection (a), the judge shall inform the defendant orally or in writing of the possible consequences under Articles 42A.108 and 42A.110 of a violation of a condition of deferred adjudication community supervision.  If the information is provided orally, the judge must record and maintain the judge’s statement to the defendant. The failure of a judge to inform a defendant of possible consequences under Articles 42A.108 and 42A.110 is not a ground for reversal unless the defendant shows that the defendant was harmed by the failure of the judge to provide the information.

Tex. Code Crim. Proc. art. 42A.102. Eligibility for Deferred Adjudication Community Supervision.

(a) Subject to Subsection (b), a judge may place on deferred adjudication community supervision a defendant charged with an offense under Penal Code Section 21.11 (Indecency with a Child), 22.011 (Sexual Assault), or 22.021 (Aggravated Sexual Assault), regardless of the age of the victim, or a defendant charged with a felony described by Article 42A.453(b) only if the judge makes a finding in open court that placing the defendant on deferred adjudication community supervision is in the best interest of the victim. The failure of the judge to make a finding under this subsection is not grounds for the defendant to set aside the plea, deferred adjudication, or any subsequent conviction or sentence.

(b) In all other cases, the judge may grant deferred adjudication community unless:

(1) the defendant is charged with an offense;

1. 1. 1. under Penal Code Section 20A.02 (Trafficking of Persons), 20A.03 (Continuous Trafficking of Persons), 49.045 (Driving While Intoxicated with Child Passenger), 49.05 (Flying While Intoxicated), 49.065 (Assembling or Operating an Amusement Ride While Intoxicated), 49.07 (Intoxication Assault), or 49.08 (Intoxication Manslaughter); or
      2. under Penal Code Section 49.04 (Driving While Intoxicated) or 49.06 (Boating While Intoxicated) and, at the time of the offense:

(i) the defendant held a commercial driver’s license or a commercial learner’s permit; or

(ii) the defendant’s alcohol concentration, as defined by Section 49.01, Penal Code, was 0.15 or more;

(C) for which punishment may be increased under Section 49.09, Penal Code;

(D) for which punishment may be increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections; or

(E) under Section 481.1123, Health and Safety Code, that is punishable under Subsection (d), (e), or (f) of that section; 

(2) the defendant:

1. 1. 1. is charged with an offense under Penal Code Section 21.11 (Indecency with a Child), 22.011 (Sexual Assault), 22.021 (Aggravated Sexual Assault), 43.04 (Aggravated Promotion of Prostitution), or 43.05 (Compelling Prostitution), regardless of the age of the victim, or a felony described by Article 42A.453(b), other than a felony described by Subdivision (1)(A) or (3)(B) of this subsection; and 
      2. has previously been placed on community supervision for an offense under Paragraph (A);

(3) the defendant is charged with an offense under:

1. 1. 1. Section 21.02, Penal Code (Continuous Sexual Abuse of Young Child or Disabled Individual); or
      2. Section 22.021, Penal Code (Aggravated Sexual Assault), that is punishable under Subsection (f) of that section or under Section 12.42(c)(3) or (4), Penal Code; or 

(4) the defendant is charged with an offense under Section 19.02, Penal Code (Murder), except that the judge may grant deferred adjudication community supervision on determining that the defendant did not cause the death of the deceased, did not intend to kill the deceased or another, and did not anticipate that a human life would be taken.

Tex. Code Crim. Proc. art. 45.051. SUSPENSION OF SENTENCE AND DEFERRAL OF FINAL DISPOSITION.

(a) On a plea of guilty or nolo contendere by a defendant or on a finding of guilt in a misdemeanor case punishable by fine only and payment of all court costs, the judge may defer further proceedings without entering an adjudication of guilt and place the defendant on probation for a period not to exceed 180 days. In issuing the order of deferral, the judge may impose a fine on the defendant in an amount not to exceed the amount of the fine that could be imposed on the defendant as punishment for the offense. The fine may be collected at any time before the date on which the period of probation ends. The judge may elect not to impose the fine for good cause shown by the defendant. If the judge orders the collection of a fine under this subsection, the judge shall require that the amount of the fine be credited toward the payment of the amount of any fine imposed by the judge as punishment for the offense. An order of deferral under this subsection terminates any liability under a bond given for the charge.

(a-1) Notwithstanding any other provision of law, as an alternative to requiring a defendant charged with one or more offenses to make payment of all fines and court costs as required by Subsection (a), the judge may:

(1) allow the defendant to enter into an agreement for payment of those fines and costs in installments during the defendant’s period of probation;

(2) require an eligible defendant to discharge all or part of those fines and costs by performing community service or attending a tutoring program under Article 45.049 or under Article 45.0492, as added by Chapter 227 (H.B. 350), Acts of the 82nd Legislature, Regular Session, 2011;

(3) waive all or part of those fines and costs under Article 45.0491; or

(4) take any combination of actions authorized by Subdivision (1), (2), or (3).

(b) During the deferral period, the judge may require the defendant to:

(1) post a bond in the amount of the fine assessed as punishment for the offense to secure payment of the fine;

(2) pay restitution to the victim of the offense in an amount not to exceed the fine assessed as punishment for the offense;

(3) submit to professional counseling;

(4) submit to diagnostic testing for alcohol or a controlled substance or drug;

(5) submit to a psychosocial assessment;

(6) successfully complete an alcohol or drug abuse treatment or education program, such as:

(A) a drug education program that is designed to educate persons on the dangers of drug abuse in accordance with Section 521.374(a)(1) , Transportation Code, and that is regulated by the Texas Department of Licensing and Regulation under Chapter 171, Government Code; or

(B) an alcohol awareness program described by Section 106.115, Alcoholic Beverage Code, that is regulated by the Texas Department of Licensing and Regulation under Chapter 171, Government Code;

(7) pay as reimbursement fees the costs of any diagnostic testing, psychosocial assessment, or participation in a treatment or education program either directly or through the court as court costs;

(8) complete a driving safety course approved under Chapter 1001, Education Code, or another course as directed by the judge;

(9) present to the court satisfactory evidence that the defendant has complied with each requirement imposed by the judge under this article; and

(10) comply with any other reasonable condition.

(b-1) If the defendant is younger than 25 years of age and the offense committed by the defendant is a traffic offense classified as a moving violation:

(1) Subsection (b)(8) does not apply;

(2) during the deferral period, the judge shall require the defendant to complete a driving safety course approved under Chapter 1001, Education Code; and

(3) if the defendant holds a provisional license, during the deferral period the judge shall require that the defendant be examined by the Department of Public Safety as required by Section 521.161(b)(2), Transportation Code; a defendant is not exempt from the examination regardless of whether the defendant was examined previously.

(b-2) A person examined as required by Subsection (b-1)(3) must pay a $10 reimbursement fee for the examination.

(b-3) The reimbursement fee collected under Subsection (b-2) must be deposited to the credit of a special account in the general revenue fund and may be used only by the Department of Public Safety for the administration of Chapter 521, Transportation Code.

(c) On determining that the defendant has complied with the requirements imposed by the judge under this article, the judge shall dismiss the complaint, and it shall be clearly noted in the docket that the complaint is dismissed and that there is not a final conviction.

(c-1) If the defendant fails to present within the deferral period satisfactory evidence of compliance with the requirements imposed by the judge under this article, the court shall:

(1) notify the defendant in writing, mailed to the address on file with the court or appearing on the notice to appear, of that failure; and

(2) require the defendant to appear at the time and place stated in the notice to show cause why the order of deferral should not be revoked.

(c-2) On the defendant’s showing of good cause for failure to present satisfactory evidence of compliance with the requirements imposed by the judge under this article, the court may allow an additional period during which the defendant may present evidence of the defendant’s compliance with the requirements.

(d) If on the date of a show cause hearing under Subsection (c-1) or, if applicable, by the conclusion of an additional period provided under Subsection (c-2) the defendant does not present satisfactory evidence that the defendant complied with the requirements imposed, the judge may impose the fine assessed or impose a lesser fine. The imposition of the fine or lesser fine constitutes a final conviction of the defendant. This subsection does not apply to a defendant required under Subsection (b-1) to complete a driving safety course approved under Chapter 1001, Education Code, or an examination under Section 521.161(b)(2), Transportation Code.

(d-1) If the defendant was required to complete a driving safety course or an examination under Subsection (b-1) and on the date of a show cause hearing under Subsection (c-1) or, if applicable, by the conclusion of an additional period provided under Subsection (c-2) the defendant does not present satisfactory evidence that the defendant completed that course or examination, the judge shall impose the fine assessed. The imposition of the fine constitutes a final conviction of the defendant.

(e) Records relating to a complaint dismissed as provided by this article may be expunged under Article 55.01. If a complaint is dismissed under this article, there is not a final conviction and the complaint may not be used against the person for any purpose.

(f) This article does not apply to:

(1) an offense to which Section 542.404, Transportation Code, applies; or

(2) a violation of a state law or local ordinance relating to motor vehicle control, other than a parking violation, committed by a person who:

(A) holds a commercial driver’s license; or

(B) held a commercial driver’s license when the offense was committed.

(g) If a judge requires a defendant under Subsection (b) to successfully complete an alcohol awareness program or drug education program as described by Subdivision (6) of that subsection, unless the judge determines that the defendant is indigent and unable to pay the cost, the judge shall require the defendant to pay a reimbursement fee for the cost of the program. The judge may allow the defendant to pay the fee in installments during the deferral period.

DEFERRED ADJUDICATION REQUIREMENTS IN TEXAS

Deferred adjudication is not a criminal conviction, but may only be granted by a judge after pleading guilty or nolo contendere. 

A person may not receive deferred adjudication for any of the following offenses:

Trafficking of Person Offenses

• Trafficking of persons (PC § 20A.02)
• Continuous trafficking of persons (PC § 20A)

Intoxication Offenses

• Driving while intoxicated (PC § 49.04) or boating while intoxicated (PC § 49.06) if the person:
  • held a commercial driver’s license or a commercial learner’s permit;
  • had a blood alcohol concentration (BAC) of 0.15 or more; or
  • has had a previous intoxication offense conviction (PC § 49.09)
• Driving while intoxicated with Child Passenger (PC § 49.045)
• Flying while intoxication (PC § 49.05)
• Assembling or operating an amusement ride while intoxicated (PC § 49.065)
• Intoxication assault (PC § 49.07)
• Intoxication manslaughter (PC § 49.08)

Drug Offenses

• A drug offense offense, if committed in a drug-free zone and the person has a previous drug conviction in a drug-free zone.
• School Zone is defined as:  in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board, the premises of a public or private youth center, or a playground, on a school bus, or by any unauthorized person 18 years of age or older, in, on, or within 1,000 feet of premises owned, rented, or leased by a general residential operation operating as a residential treatment center.

Sex Offenses

• One of the following offenses, if the person has previously been on community supervision for one of these offenses:
  • Human trafficking
  • Indecent exposure
  • Indecency with a child
  • Sexual assault
  • Aggravated sexual assault
  • Prohibited sexual conduct
  • Aggravated kidnapping (with intent to sexually violate the victim)
  • Burglary (with intent to commit a felony sex offense)
  • Compelling child prostitution
  • Sexual performance by a child
  • Possession or promotion of child pornography
• Continuous sexual abuse of a child
• Aggravated sexual assault of a child

Homicide

• Murder

Middleton v. State, 643 S.W.3d 46, 50–51 (Tex. Crim. App. 2021):

To be placed on deferred adjudication, a defendant pleads guilty, but the trial court does not make a finding of guilt; rather the trial court finds that the “evidence … substantiates the defendant’s guilt [and] defers further proceedings without entering an adjudication of guilt.” The wording of the statute seems to contemplate a pause, as if the case were taken under advisement. During this pause, the defendant is given the opportunity to complete a probationary period in compliance with conditions, and if he succeeds, then the charges will be dismissed. If he fails, and the trial judge later finds a violation of probation and decides to adjudicate guilt, the proceedings continue where they left off: “After an adjudication of guilt, all proceedings, including the assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.” For most purposes, a deferred adjudication does not count as a conviction. 

A defendant placed on regular probation is considered to have a conviction, with an assessed sentence, at the time probation is imposed, though for some purposes, that conviction is not final. The State suggests that regular probation and deferred adjudication are similar enough to be treated the same for the purpose of determining whether sentences can be stacked. It is true that a defendant whose deferred adjudication is adjudicated cannot then appeal the original plea, a fact which prompted us to remark that such a defendant “is in a situation similar in most respects to a defendant who appeals a revocation order in a regular probation case.” But in addition to the semantic difference between deferring a finding of guilt (deferred adjudication) and finding guilt and suspending the imposition of sentence (regular probation), there are other practical differences that make deferred adjudication less like a conviction than regular probation is.

For instance, unlike a defendant placed on regular probation for a felony offense, a defendant who has been placed on deferred adjudication remains eligible in a later case for regular probation because he is not considered to have a final felony conviction. Even more relevant is the fact that the deferred-adjudication defendant is exposed to the full range of punishment upon adjudication—a fact that is not true for a defendant on regular probation. In Cabezas, a deferred-adjudication defendant’s continued exposure to the full range of punishment was part of what prompted us to reject the State’s claim that for policy reasons, a judge should not be able to impose deferred adjudication when he would otherwise be prohibited from imposing regular probation. Also, a defendant whose guilt is adjudicated after a deferral can file a motion for new trial as to the plea itself when such a motion would be unavailable to a defendant upon revocation of regular probation. If a deferred-adjudication defendant’s post-adjudication motion for new trial is granted, “the conviction itself would be undone.” Because of these unique characteristics of deferred-adjudication—that it is not a conviction for most purposes, lacks finality in significant respects, and retains exposure to the full range of punishment—we conclude that a deferred-adjudication plea proceeding is not complete under the concurrent-sentencing statute until sentence is imposed after adjudication.

PROS AND CONS OF DEFERRED ADJUDICATION IN TEXAS

Deferred adjudication probation in Texas is a legal option that allows a defendant to avoid a conviction by complying with certain conditions set by the court. This arrangement can be beneficial to many individuals in Texas. 

Defendants who successfully complete their deferred adjudication probation period avoid a formal conviction, which means they won’t have a criminal conviction for the offense. Deferred adjudication allows offenders to focus on rehabilitation as probation often includes counseling, educational programs, and support services. Deferred adjudication can often keep the defendant out of jail, allowing them to continue their daily life while adhering to probation conditions. Finally, deferred adjudication allows many individuals to seal their record by order of nondisclosure once they have completed their probation period.

However, deferred adjudication may come with certain drawbacks as probation conditions are sometimes strict and varied, and include regular check-ins, drug tests, and community service. Additionally, any violation of probation terms can result in severe consequences, including sentencing to the entire range of punishment for the original charge. Deferred adjudication probation violations can also lead to new criminal charges which may further complicate the legal situation.

HOW LONG IS DEFERRED ADJUDICATION PROBATION IN TEXAS?

Deferred adjudication Probation length will vary among the different Texas Penal Code offenses and across the state’s many jurisdictions. Typically the sentencing judge determines the length of deferred adjudication probation by considering the characteristics of the Defendant, the facts of the case, the Defendant’s criminal history, and any other relevant factor. However, effective advocacy and plea bargain negotiations directly influence the ultimate length of community supervision in Texas. Additionally, Offenders who have demonstrated compliance with court requirements may also seek early termination of deferred adjudication probation in many circumstances. 

Texas law thus establishes several important constraints to deferred adjudication probation length and the court’s statutory power to amend and extend a probation period in certain circumstances. Texas Code of Criminal Procedure Article 42A.103 provides:

(a) In a felony case, the period of deferred adjudication community supervision may not exceed 10 years.  For a defendant charged with a felony under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the victim, and for a defendant charged with a felony described by Article 42A.453(b), the period of deferred adjudication community supervision may not be less than five years.

(b)  In a misdemeanor case, the period of deferred adjudication community supervision may not exceed two years.

(c)  A judge may extend the maximum period of deferred adjudication community supervision in the manner provided by Article 42A.753 or 42A.757.

Can a judge extend deferred adjudication probation in Texas?

Texas law allows a judge to extend a supervisory term upon a deferred adjudication probation violation. The judge may extend deferred adjudication probation as frequently as necessary but felony probation may not exceed 10 years. Similarly, a misdemeanor deferred adjudication probation extension may not exceed 3 years except when the Defendant continues to owe fines or fees, in which case a judge may add an additional 2 years of supervision.

The statutory authority for deferred adjudication probation extension is found in Code of Criminal Procedure Article 42A.753, which states:

(a)  On a showing of good cause, the judge may extend a period of community supervision under Article 42A.752(a)(2) as frequently as the judge determines is necessary, but the period of community supervision in a first, second, or third degree felony case may not exceed 10 years and, except as otherwise provided by Subsection (b), the period of community supervision in a misdemeanor case may not exceed three years.

(b)  The judge may extend the period of community supervision in a misdemeanor case for any period the judge determines is necessary, not to exceed an additional two years beyond the three-year limit provided by Subsection (a), if:

(1)  the defendant fails to pay a previously assessed fine, cost, or restitution; and

(2)  the judge determines that extending the supervision period increases the likelihood that the defendant will fully pay the fine, cost, or restitution.

(c)  A court may extend a period of community supervision under Article 42A.752(a)(2):

(1)  at any time during the supervision period; or

(2)  before the first anniversary of the date the supervision period ends, if a motion for revocation of community supervision is filed before the date the supervision period ends.

WHAT HAPPENS WHEN THERE IS A VIOLATION OF CONDITIONS OF DEFERRED ADJUDICATION PROBATION IN TEXAS?

Deferred adjudication probation violations are typically addressed by the filing of a motion to enter adjudication of guilt, which functions similarly to a motion for revocation of community supervision (MTR). Defendants facing adjudication and revocation are entitled to a hearing before any adjudication, disciplinary extension or revocation can issue. Pursuant to Article 42A.754 of the Code of Criminal Procedure, only the court in which the Defendant was tried may proceed with adjudication and revoke the Defendant’s community supervision unless the judge transfers jurisdiction to another court.

Upon notice of a deferred adjudication probation violation, the judge may issue a warrant and cause the Defendant to be arrested. Once a Defendant is in custody the judge must issue bail, allowing the Defendant release on bond until the adjudication hearing. A Defendant has a right to legal counsel at an adjudication hearing and shall be appointed such representation if indigent. After a hearing without a jury, a judge may enter adjudication of guilt and continue, extend, modify, or revoke the Defendant’s community supervision. 

Tex. Code Crim. Proc. art. 42A.108. Violation of Condition of Deferred Adjudication Community Supervision; Hearing

(a)  On violation of a condition of deferred adjudication community supervision imposed under Article 42A.104, the defendant may be arrested and detained as provided in Article 42A.751.

(b)  The defendant is entitled to a hearing limited to a determination by the court of whether the court will proceed with an adjudication of guilt on the original charge.  The court may not proceed with an adjudication of guilt on the original charge if the court finds that the only evidence supporting the alleged violation of a condition of deferred adjudication community supervision is the uncorroborated results of a polygraph examination. The determination to proceed with an adjudication of guilt on the original charge is reviewable in the same manner as a revocation hearing conducted under Article 42A.751(d) in a case in which the adjudication of guilt was not deferred.

(c)  A court retains jurisdiction to hold a hearing under Subsection (b) and to proceed with an adjudication of guilt, regardless of whether the period of deferred adjudication community supervision imposed on the defendant has expired, if before the expiration of the supervision period:

(1)  the attorney representing the state files a motion to proceed with the adjudication; and

(2)  a capias is issued for the arrest of the defendant.

Tex. Code Crim. Proc. art. 42A.751. Violation of Conditions of Community Supervision; Detention and Hearing

(a)  At any time during the period of community supervision, the judge may issue a warrant for a violation of any condition of community supervision and cause a defendant convicted under Section 43.02 or 43.021, Penal Code, Chapter 481, Health and Safety Code, or Sections 485.031 through 485.035, Health and Safety Code, or placed on deferred adjudication community supervision after being charged with one of those offenses, to be subject to:

(1)  the control measures of Section 81.083, Health and Safety Code; and

(2)  the court-ordered-management provisions of Subchapter G, Chapter 81, Health and Safety Code.

(b)  At any time during the period of community supervision, the judge may issue a warrant for a violation of any condition of community supervision and cause the defendant to be arrested.  Any supervision officer, police officer, or other officer with the power of arrest may arrest the defendant with or without a warrant on the order of the judge to be noted on the docket of the court.  Subject to Subsection (c), a defendant arrested under this subsection may be detained in the county jail or other appropriate place of confinement until the defendant can be taken before the judge for a determination regarding the alleged violation.  The arresting officer shall immediately report the arrest and detention to the judge.

(c)  Without any unnecessary delay, but not later than 48 hours after the defendant is arrested, the arresting officer or the person with custody of the defendant shall take the defendant before the judge who ordered the arrest for the alleged violation of a condition of community supervision or, if the judge is unavailable, before a magistrate of the county in which the defendant was arrested.  The judge or magistrate shall perform all appropriate duties and may exercise all appropriate powers as provided by Article 15.17 with respect to an arrest for a new offense, except that only the judge who ordered the arrest for the alleged violation may authorize the defendant’s release on bail.  The defendant may be taken before the judge or magistrate under this subsection by means of an electronic broadcast system as provided by and subject to the requirements of Article 15.17.

(d)  If the defendant has not been released on bail as permitted under Subsection (c), on motion by the defendant, the judge who ordered the arrest for the alleged violation of a condition of community supervision shall cause the defendant to be brought before the judge for a hearing on the alleged violation within 20 days of the date the motion is filed.  After a hearing without a jury, the judge may continue, extend, modify, or revoke the community supervision.

(e)  A judge may revoke without a hearing the community supervision of a defendant who is imprisoned in a penal institution if the defendant in writing before a court of record or a notary public in the jurisdiction where the defendant is imprisoned:

(1)  waives the defendant’s right to a hearing and to counsel;

(2)  affirms that the defendant has nothing to say as to why sentence should not be pronounced against the defendant; and

(3)  requests the judge to revoke community supervision and to pronounce sentence.

(f)  In a felony case, the state may amend the motion to revoke community supervision at any time before the seventh day before the date of the revocation hearing, after which time the motion may not be amended except for good cause shown.  The state may not amend the motion after the commencement of taking evidence at the revocation hearing.

(g)  The judge may continue the revocation hearing for good cause shown by either the defendant or the state.

(h)  The court may not revoke the community supervision of a defendant if, at the revocation hearing, the court finds that the only evidence supporting the alleged violation of a condition of community supervision is the uncorroborated results of a polygraph examination.

(i)  In a revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay community supervision fees or court costs or by failing to pay the costs of legal services as described by Article 42A.301(b)(11), the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge.

(j)  The court may order a community supervision and corrections department to obtain information pertaining to the factors listed under Article 42.037(h) and include that information in the presentence report required under Article 42A.252(a) or a separate report, as the court directs.

(k)  A defendant has a right to counsel at a hearing under this article.  The court shall appoint counsel for an indigent defendant in accordance with the procedures adopted under Article 26.04.

(l)  A court retains jurisdiction to hold a hearing under Subsection (d) and to revoke, continue, or modify community supervision, regardless of whether the period of community supervision imposed on the defendant has expired, if before the expiration of the supervision period:

(1)  the attorney representing the state files a motion to revoke, continue, or modify community supervision; and

(2)  a capias is issued for the arrest of the defendant.

Tex. Code Crim. Proc. art. 42A.752. Continuation or Modification of Community Supervision after Violation

(a)  If after a hearing under Article 42A.751(d) a judge continues or modifies community supervision after determining that the defendant violated a condition of community supervision, the judge may impose any other conditions the judge determines are appropriate, including:

(1)  a requirement that the defendant perform community service for a number of hours specified by the court under Article 42A.304, or an increase in the number of hours that the defendant has previously been required to perform under that article in an amount not to exceed double the number of hours permitted by that article;

(2)  an extension of the period of community supervision, in the manner described by Article 42A.753;

(3)  an increase in the defendant’s fine, in the manner described by Subsection (b); or

(4)  the placement of the defendant in a substance abuse felony punishment program operated under Section 493.009, Government Code, if:

(A)  the defendant is convicted of a felony other than:

(i)  a felony under Section 21.11, 22.011, or 22.021, Penal Code; or

(ii)  criminal attempt of a felony under Section 21.11, 22.011, or 22.021, Penal Code; and

(B)  the judge makes an affirmative finding that:

(i)  drug or alcohol abuse significantly contributed to the commission of the offense or violation of a condition of community supervision, as applicable; and

(ii)  the defendant is a suitable candidate for treatment, as determined by the suitability criteria established by the Texas Board of Criminal Justice under Section 493.009(b), Government Code.

(b)  A judge may impose a sanction on a defendant described by Subsection (a)(3) by increasing the fine imposed on the defendant.  The original fine imposed on the defendant and an increase in the fine imposed under this subsection may not exceed the maximum fine for the offense for which the defendant was sentenced.  The judge shall deposit money received from an increase in the defendant’s fine under this subsection in the special fund of the county treasury to be used for the same purposes for which state aid may be used under Chapter 76, Government Code.

(c)  If the judge imposes a sanction under Subsection (a)(4), the judge shall also impose a condition requiring the defendant on successful completion of the program to participate in a drug or alcohol abuse continuum of care treatment plan.

Tex. Code Crim. Proc. art. 42A.755. Revocation of Community Supervision

(a)  If community supervision is revoked after a hearing under Article 42A.751(d), the judge may:

(1)  proceed to dispose of the case as if there had been no community supervision; or

(2)  if the judge determines that the best interests of society and the defendant would be served by a shorter term of confinement, reduce the term of confinement originally assessed to any term of confinement not less than the minimum prescribed for the offense of which the defendant was convicted.

(b)  The judge shall enter in the judgment in the case the amount of restitution owed by the defendant on the date of revocation.

(c)  Except as otherwise provided by Subsection (d), no part of the period that the defendant is on community supervision may be considered as any part of the term that the defendant is sentenced to serve.

(d)  On revocation, the judge shall credit to the defendant time served as a condition of community supervision in a substance abuse felony punishment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, or other court-ordered residential program or facility, but only if the defendant successfully completes the treatment program in that facility.

(e)  The right of the defendant to appeal for a review of the conviction and punishment, as provided by law, shall be accorded the defendant at the time the defendant is placed on community supervision.  When the defendant is notified that the defendant’s community supervision is revoked for a violation of the conditions of community supervision and the defendant is called on to serve a sentence in a jail or in the Texas Department of Criminal Justice, the defendant may appeal the revocation.

WHAT ARE CONDITIONS OF DEFERRED ADJUDICATION PROBATION IN TEXAS?

Texas judges have wide latitude in imposing deferred adjudication probation conditions depending on the type of offense and the nature of the case. Additionally, Texas law subjects certain offenses and offenders to mandatory probation conditions.

Common community supervision conditions thus include refraining from further criminal offenses, payment of fines, community service, alcohol and drug testing and awareness programs, and regular meetings with a probation officer. A judge may also require  confinement as a condition of probation, for a maximum of 30 days in a misdemeanor case, and 180 days in a felony. 

Tex. Code Crim. Proc. art. 42A.104. Conditions of Deferred Adjudication Community Supervision; Imposition of Fine

(a) The judge may impose a fine applicable to the offense and require any reasonable condition of deferred adjudication community supervision that a judge could impose on a defendant placed on community supervision for a conviction that was probated and suspended, including:

(1)  confinement; and

(2)  mental health treatment under Article 42A.506.

(b)  The provisions of Subchapter L specifying whether a defendant convicted of a state jail felony is to be confined in a county jail or state jail felony facility and establishing the minimum and maximum terms of confinement as a condition of community supervision apply in the same manner to a defendant placed on deferred adjudication community supervision after pleading guilty or nolo contendere to a state jail felony.

Additional statutory authorities regulating Texas probation conditions are contained in Subchapter G through Subchapter N of Chapter 42A of the Code of Criminal Procedure.

Tex. Code Crim. Proc. art. 42A.301. Basic Discretionary Conditions

(a)  The judge of the court having jurisdiction of the case shall determine the conditions of community supervision after considering the results of a risk and needs assessment conducted with respect to the defendant.  The assessment must be conducted using an instrument that is validated for the purpose of assessing the risks and needs of a defendant placed on community supervision.  The judge may impose any reasonable condition that is not duplicative of another condition and that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.  In determining the conditions, the judge shall consider the extent to which the conditions impact the defendant’s:

(1)  work, education, and community service schedule or obligations; and

(2)  ability to meet financial obligations.

(b)  Conditions of community supervision may include conditions requiring the defendant to:

(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)   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;

(4)  permit the supervision officer to visit the defendant at the defendant’s home or elsewhere;

(5)  work faithfully at suitable employment to the extent possible;

(6)  remain within a specified place;

(7)  pay in one or more amounts:

(A)  the defendant’s fine, if one is assessed; and

(B)  all court costs, regardless of whether a fine is assessed;

(8)  support the defendant’s dependents;

(9)  participate, for a period specified by the judge, in any community-based program, including a community service project under Article 42A.304;

(10)  if the judge determines that the defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided to the defendant in accordance with Article 1.051(c) or (d), including any expenses and costs, reimburse the county in which the prosecution was instituted for the costs of the legal services in an amount that the judge finds the defendant is able to pay, except that the defendant may not be ordered to pay an amount that exceeds:

(A)  the actual costs, including any expenses and costs, paid by the county for the legal services provided by an appointed attorney; or

(B)  if the defendant was represented by a public defender’s office, the actual amount, including any expenses and costs, that would have otherwise been paid to an appointed attorney had the county not had a public defender’s office;

(11)  if under custodial supervision in a community corrections facility:

(A)  remain under that supervision;

(B)  obey all rules and regulations of the facility; and

(C)  pay a percentage of the defendant’s income to the facility for room and board;

(12)  submit to testing for alcohol or controlled substances;

(13)  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;

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

(15)  submit to electronic monitoring;

(16)  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 56B.003, of the 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;

(17)  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;

(18)  reimburse 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;

(19)  pay a fine 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;

(20)  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; and

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

(c)  Before the judge may require as a condition of community supervision that the defendant receive treatment in a state-funded substance abuse treatment program, including an inpatient or outpatient program, a substance abuse felony program under Article 42A.303, or a program provided to the defendant while confined in a community corrections facility as defined by Article 42A.601, the judge must consider the results of an evaluation conducted to determine the appropriate type and level of treatment necessary to address the defendant’s alcohol or drug dependency.

Subchapter I of the statute contains general probation conditions applicable to intoxication offenses like DWI. These provision require a drug and alcohol dependency evaluation for those convicted of DWI, use of a motor vehicle ignition interlock device for repeat offenders, and other relevant conditions like driver’s license suspensions.

Subchapter K of the statute sets forth specific conditions applicable to a bevy of distinct criminal offenses and offenders. For example, Article 42A.504 creates special conditions for offenses of domestic violence including completion of a Battering Intervention Program. Similarly, Article 42A.507 establishes conditions for criminal street gang members including compliance with GPS tracking. The provisions of this subchapter seek to establish a uniformity of probation conditions across a diaspora of criminal offenses and offenders.

Tex. Code Crim. Proc. art. 42A.301. Payment as a Condition of Community Supervision

a)  A judge may not order a defendant to make a payment as a term or condition of community supervision, except for:

(1)  the payment of fines, court costs, or restitution to the victim;

(2)  reimbursement of a county as described by Article 42A.301(b)(11); or

(3)  a payment ordered as a condition that relates personally to the rehabilitation of the defendant or that is otherwise expressly authorized by law.

(b)  A defendant’s obligation to pay a fine or court cost as ordered by a judge is independent of any requirement to pay the fine or court cost as a condition of the defendant’s community supervision.  A defendant remains obligated to pay any unpaid fine or court cost after the expiration of the defendant’s period of community supervision.

(c)  A judge may not impose a condition of community supervision requiring a defendant to reimburse a county for the costs of legal services as described by Article 42A.301(b)(11) if the defendant has already satisfied that obligation under Article 26.05(g).

DEFERRED ADJUDICATION PROBATION IN TEXAS

Deferred adjudication is a type of probation in Texas where the court defers a finding of guilt and places the offender on community supervision. Deferred adjudication probation is a preferable alternative to incarceration where a criminal Defendant is allowed to remain in the community under certain conditions set by the court. Instead of serving jail time or prison, the offender must comply with various rules and requirements designed to ensure they lead a law-abiding life and do not pose a threat to society. If the offender successfully completes the deferred adjudication probation period, the case is dismissed without a conviction on their record.

Texas Code of Criminal Procedure Chapter 42A establishes the statutory authority for deferred adjudication probation, allowing a court to set specific conditions an offender must follow. Not all offenders are eligible for deferred adjudication. Defendants on deferred adjudication probation are supervised by probation officers who monitor their compliance with court conditions. If a Defendant violates any terms of their probation, the court can proceed to adjudication and impose additional penalties, including modification, extension, and revocation of community supervision.

Community supervision is a rehabilitative tool, allowing for a minimization of the societal and financial costs associated with incarceration. Offenders are allowed to maintain their familial and community ties while remaining productive members of society and receiving treatment for any mental health or substance abuse issues. Deferred adjudication probation allows offenders to complete their sentence outside of jail or prison under strict conditions set by the court. Successful completion of deferred adjudication results in a dismissal of charges and discharge from probation, while violations can result in severe consequences including incarceration.