UPDATED 7/14/2021, Original Post: August 30, 2019
The Texas criminal justice system is complex, and it is easy to mix up terms, or accidentally use them interchangeably. In particular, the legal terms “probation” and “parole” are often used incorrectly. While they have some similarities, they are not the same process.
Let’s take a look at the circumstances of probation and parole, and key differences between these two processes. We will also cover the consequences of a parole or probation violation, and what you can do to fight back.
Texas Probation Basics
Probation is court-ordered supervision that allows a defendant to remain in the community rather than serving his or her sentence in jail or prison.
How Do You Negotiate A Probation? Probation can be obtained by negotiating a probation result from the prosecutor, by doing an open plea to the judge or by receiving probation from a jury at a jury trial. However, if you have been previously convicted of a felony charge, you are not technically eligible for probation and the jury will be prohibited from giving you probation at a sentencing hearing. Your criminal defense lawyer may still be able to negotiate a probation sentence for you through negotiations with the prosecutor.
What if you have negotiated a probation sentence? How do you know what conditions you will be required to complete? In Texas, a judge will give a probationer specific terms to follow for a designated period of time, which often include:
- Maintaining a job
- Abiding by a curfew
- Avoiding drug or alcohol use
- Completing community service
- Reporting to a probation officer
- Completing classes specific to the crime
- Passing random drug testing
Essentially, probation is an opportunity for low-level offenders to prove to the court that they can rehabilitate themselves while living and working in the community by avoiding violations.
Understanding The Difference Between Straight Probation And Deferred Adjudication
When examining Texas probation law, it is important to know that there are two options: Straight Probation and Deferred Adjudication. The main difference between the two options is that Straight Probation is a type of probation that results in a conviction that is permanently on your criminal record.
If you receive a straight probation, a judge will sentence you to specific jail or prison sentence and then probate that sentence for a specified period of time. For misdemeanor cases, the maximum term of probation is 2 years. For felony crimes, the maximum term of probation is 10 years.
If you receive a deferred adjudication probation, your sentencing is “deferred” or delayed until a determination has been made that you have completed all the terms and conditions of your deferred adjudication probation. Basically, your case is paused for the duration of your probation. If you complete the terms and conditions of your deferred adjudication probation, your case will be administratively dismissed and, after the statutory waiting period, you may be eligible to have your criminal case and arrest record sealed from your criminal record.
Texas Parole Basics
Parole is community supervision that is granted to an inmate that has already served time in jail or prison for a felony-level offense. The Texas Board of Pardons and Paroles usually grants parole when an offender has exhibited good behavior while in prison.
Once an inmate is released on parole, the parolee must report to an officer in the Texas Parole Division, who will lay out specific terms. These terms often include:
- Reporting to the parole officer
- Avoiding drug and alcohol use
- Not committing additional crimes
- Avoiding contact with other offenders
- Abiding by a curfew
Essentially, parole is early release from prison, and requires parolees to abide by strict community supervision guidelines in order to stay out of prison.
Key Similarities and Differences Between Parole and Probation
Although probation and parole are issued for different purposes, there are some similarities:
- Both are supervised by a local parole or probation officer where the defendant lives
- Revocation of parole or probation could require the defendant to serve the duration of the sentence behind bars
There are also some key differences between parole and probation:
- Parole is granted by the parole board for offenders already in jail or prison, while probation is granted by a jury or judge as an alternative to incarceration
- A probationer serves little or no jail time if the terms of probation are met, while a parolee has usually spent a substantial amount of time incarcerated prior to issuance of parole
- Probation is granted to offenders accused of misdemeanors or low-level felonies, while parole is given to convicted felons that have already completed a portion of their prison sentence.
Consequences of a Parole or Probation Violation in Texas
Probation and parole are different processes, granted under different circumstances. However, if you violate either, your freedom is in danger.
Depending on the severity of the violation and preferences of the supervising officer, the consequences can range from a written warning to revocation of parole or probation, which places the defendant behind bars.
Your attorney will advocate for the violation to be handled administratively, in which case your probation or parole will remain in effect, but you may face additional terms or an extension of the supervision period.
If your parole or probation officer feels that the violation is serious, he or she may file a petition for revocation, which triggers an arrest and violation hearing.
Probation Revocation Proceedings
If your probation officer believes you have violated the terms and conditions of your probation, they may issue a petition to proceed to adjudicate, followed by a warrant for your arrest. Your next priority will be securing bond. If you received a deferred adjudication probation, you must have a criminal defense attorney request for a bond to be set by the judge so you can be released. Failure to do so could result in a bond hold that leaves you in custody. If you have received straight probation, you are not legally entitled to a bond but your criminal lawyer can make a request for a bond to be set.
During a probation revocation proceeding, you have limited rights. Because you have already pled guilty to the original crime, you no longer have a right to a jury trial. You only have the right to a hearing before your judge to determine if you should be reinstated on probation or sentenced to a jail or prison sentence.
It is critical that you hire an experienced probation attorney that has proven results in the county you are facing probation revocation. A good probation revocation lawyer can work with probation, the judge and the prosecutor to create options to resolve the case, while minimizing your risk.
Parole Revocation Proceedings
If you are informed that you have violated your parole, a blue warrant can be issued that will require you to remain in custody until your parole hearing is completed. The specifics of your violations will be presented to the parole board to determine if the parole can be reinstated or if the remainder of the prison sentence will be required to be served.
Although probation and parole are different, you must abide by their terms in order to stay out of jail or prison. If you’re hit with a violation, respond proactively with experienced representation.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.