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Early Release Probation in Texas | Early Release Deferred Adjudication

By Benson Varghese

Last Updated: August 2nd, 2021
Published on: December 4th, 2016
Early Release from Probation

Community supervision for criminal offenses in Texas takes two forms: straight probation and deferred adjudication. More than 380,000 adults are on probation in Texas. This article discusses early release from probation and deferred adjudication in Texas.

What is Early Release Probation?

For most offenses, early release from probation or deferred adjudication is possible. However, you will not be able to get early release from probation if you are on probation for a 3g offense, any intoxication-related offense, or any offense that requires registration as a sex offender. It is possible, however, for a judge to place you on pro forma, or non-reporting, status for intoxication-related offenses.

What is Early Release from Straight Probation?

If you are on straight probation, you are eligible to petition the court for early release in most instances after you have served 1/3 of your probated sentence term or two years, whichever is less. See Code of Criminal Procedure 42A.701. This 1/3 time review is discretionary on the part of the judge. Most judges require that you complete 1/2 your term before they will give your petition serious consideration. A half-time review is mandatory if an application is made. That does not mean that the judge is obligated to approve the application for release. If the judge denies your application, the court is required to give you a list of conditions you need to meet in most cases.

What is Early Release from Deferred Adjudication?

If you are on deferred adjudication, you can petition the court for early release at any time. However, you are much more likely to have the court rule in your favor if you have completed a significant portion of your term of deferred adjudication.

Early release of deferred adjudication is governed by Code of Criminal Procedure Article 42A.111. It allows the judge to release individuals from deferred adjudication if the judge believes doing so would be in the best interest of society and the defendant. However, the statute specifically prohibits early release from any offense for which the accused is required to register as a sex offender.

Early Release from Deferred Adjudication is Not Allowed for the Following:

Offense Penal Code Degree
Aggravated sexual assault 22.021 1st
Aggravated sexual assault child 22.021(a)(2)(b) 1st
Aggravated sexual assault 65 years or older 22.021 (a)(2)(c) 1st
Aggravated kidnapping (only with intent to violate or abuse victim sexually) 22.04 (a)(4) 1st
Aggravated kidnapping with no sexual intent and victim under 17 years of age 20.04 2nd
Continuous Sexual Assault of a Child 21.02 25-Life
Burglary of habitation intent other felony 30.02 (d) 1st
Compelling prostitution 43.05 2nd
Indecency with child (exposure) 21.11 (a)(2) 3rd
Indecency with child (contact) 21.11 (a)(1) 2nd
Indecent exposure (2nd) conviction 21.08 M
Kidnapping (victim under 17 years old) 20.03 3rd
Possession of child pornography 43.26 (a) 3rd
Possession promotion of child pornography 43.25 (e) 2nd
Prohibited sexual conduct (incest) 25.02 3rd
Sexual assault 22.011 (a)(1) 2nd
Sexual assault child 22.011 (a)(2) 2nd
Sexual performance child employed to induce/authorize 43.25 (b) 2nd
Sexual performance child to produce/direct/promote 43.25 (d) 3rd
Unlawful restraint victim under 17 years of age 20.02 (c)(1) State Jail
Unlawful restraint exposes victim under 17 years of age to serious bodily injury 20.02 (c)(2) 3rd

Family Violence Offenses

Family violence offenses are not prohibited from early release of deferred adjudication although practically it may be difficult to have a judge grant early release. Whether or not early release is granted, a family violence offense that has been deferred cannot be non-disclosed, even if there was no affirmative finding of family violence.

Steps Before Applying for Early Release

Before you spend money on an attorney to petition the court for early release, make sure you have done the following:

  • Complete all the court-ordered classes and conditions. If you have not completed all your conditions of probation, the court is not going to grant your request for early release.
  • Make sure all your court courts, fines, and probation fees are paid up.
  • If you have had violations or sanctions during your term, expect to need to more than the minimum term required before you can ask for early release.
  • Maintain a good relationship with your probation officer. The court will check with the court probation officer who will ask your field probation officer how you have been doing on probation. The better your performance on probation and relationship with your probation officer, the more likely the judge will grant the petition for early release.
  • Be prepared for a drug test. Don’t forget that the court will likely ask you to provide a clean drug test right before the hearing on the petition for early release.
  • If you are released early from deferred adjudication or if you are granted judicial clemency, look into getting a Nondisclosure. This will keep the charge from appearing on your record with the exception of inquiries by law enforcement agents and state licensing agencies.

What is Judicial Clemency?

If the judge discharges a probationer from straight probation, the judge may set aside the verdict and permit the probationer to withdraw his or her plea, dismissing the accusation and releasing the probationer from all penalties and disabilities resulting from the offense. This is known as judicial clemency. For example, if a felony conviction is set aside that offense cannot constitute the predicate conviction required to sustain a conviction for felon in possession of a firearm. For individuals interested in restoring their right to bear arms, this is a very valuable proposition. A trial court retains authority to grant judicial clemency for only 30 days after discharging a defendant from probation.

Interested in Early Release from Probation or Deferred Adjudication?

Contact us today for a complimentary strategy session. Call 817-203-2220 or contact us online.

Early Release Probation in Texas | Early Release Deferred Adjudication
2021-08-02T09:29:55-06:00
Varghese Summersett PLLC
Varghese Summersett PLLC