Understanding the different types of probation in Texas
Probated sentenceUnder a probated sentence, the defendant will be sentenced to a set amount of jail or prison time, which will be suspended. The defendant must report to a probation officer for a set amount of time, pay fines and court costs, and comply with all the conditions of probation.
If a motion to revoke is filed, and the defendant's probation is revoked, the defendant shall be sentenced to a jail or prison term not to exceed the suspended sentence. For example, if a defendant is sentenced to 5 years probated for 5 years on a third-degree felony, upon revocation the defendant could not be sentenced to more than 5 years in prison (even though the maximum punishment allowed is 10 years.)
A probated sentence results in a final conviction. It is not eligible for expungement or nondisclosure.
Deferred adjudication probationLike a suspended sentence, under deferred adjudication probation, the defendant will report to a probation offer for a set amount of time. The four chief differences between deferred adjudication and a probated sentence:
1. On granting deferred adjudication probation, a judge makes no finding of guilt.
2. A defendant may not receive deferred adjudication probation after a trial. A trial requires a finding of guilt or innocence, and therefore is not eligible for deferred adjudication.
3. Unlike a probated sentence, if a motion to adjudicate is filed and the case is adjudicated, the defendant is not "locked in" to a sentence. If a defendant received 5 years deferred adjudication probation for a third-degree felony, following adjudication he or she could be sentenced to up to 10 years.
4. Deferred adjudication is eligible for nondisclosure, but not expungement.
While deferred adjudication is technically not a final conviction, many private parties will treat it the same.
Pre-trial diversionPre-trial diversions generally will involve reporting to a probation officer, but are very different.
A pre-trial diversion is an agreement between the district attorney and the defendant. If the defendant completes the diversion program successfully, the case will be dismissed and eligible for expungement.
Pre-trial diversion programs are generally set up and administered by various county attorney's offices; there is no requirement that a county or district attorney have such a program, and some don't. The eligibility requirements also vary depending on the individual office.
Generally speaking, successful completion of a pre-trial diversion is solely at the discretion of the DA. Unlike a probated sentence or deferred adjudication, a defendant may be removed from a pre-trial diversion without the approval of a judge. And, oftentimes, the pre-trial diversion agreement will require the defendant to agree to plead guilty if the program is violated.