Probation Eligibility Limitations for Texas
In a system of probation or community supervision, convicted people stay in their communities but must comply with conditions that guard against further criminal activity. These conditions typically include regular meetings with probation officers, electronic monitoring and routine drug testing. Texas state law limits probation eligibility by excluding persons guilty of certain violent, drug-related or sexual felonies, but juries can sometimes recommend supervision even when judges cannot order it.
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Prison Sentences Over 10 Years
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According to Texas state law, judges cannot order, and juries cannot recommend, community supervision for a person sentenced to over 10 years in prison.
Violent Crimes
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Judges also cannot order community supervision in cases involving certain violent crimes. Texas' Code of Criminal Procedure specifically bars judge-ordered probation for persons convicted of murder, capital murder, aggravated kidnapping and aggravated robbery. The same restriction applies to cases where the defendant knowingly or deliberately caused serious bodily injury to a child under 14.
Juries have considerably more flexibility. They can recommend supervision except in cases of murder or in cases in which the defendant committed aggravated kidnapping with the intention of violating a child under the age of 14.
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Sentence Enhancements
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Texas' Controlled Substances Act (CSA) can also make a person ineligible for community supervision. That law imposes stiffer sentences on drug traffickers or manufacturers who use children to commit drug-related offenses. A judge cannot give community supervision to a person who receives this sentencing enhancement, though a jury may.
Texas also increases penalties for people who commit drug crimes in "Drug-Free Zones" around schools, playgrounds and other areas frequented by children. A person can still get community supervision the first time a sentence enhancement applies, but that eligibility will not apply to later convictions. [Reference 1, Section 3g(a)(1)(G)]
Sexual Offenses
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Judges cannot order community supervision for sexual crimes involving violence or children. Sexual assault, aggravated sexual assault, indecency with a child or sexual performance by a child will all render an offender ineligible.
Juries cannot recommend community supervision for persons convicted for sexual performance by a child, but they have more room to decide that an offender deserves probation for other crimes. Juries can recommend community supervision for indecency with a child, sexual assault or aggravated sexual assault, if the victim was older than 14. Likewise, they can recommend supervision in aggravated kidnapping cases, unless the victim was younger than 14 and the offender intended to "violate or abuse" the victim.
Criminal Solicitation
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Texas law bars judges from ordering community supervision in cases of criminal solicitation. Criminal solicitation occurs when the offender tries to force or persuade another person to commit a capital offense. Juries may still recommend supervision.
Deadly Weapons and Felonies
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Using or displaying a deadly weapon while committing a felony also makes it impossible for a judge to grant community supervision instead of a prison sentence. The defendant need not have carried the weapon, so long as he or she participated in the crime and knew an accomplice would use a deadly weapon. Texas law does not restrict a jury's ability to recommend supervision in such cases.
Jury Recommendations
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Juries can sometimes make binding recommendations to judges about community supervision, but a defendant's eligibility depends on the filing of a motion to the judge before the trial. For the jury's recommendation of probation to bind the judge, the defendant must make a sworn motion that he has no prior felony convictions, and the jury must find in the verdict that the defendant's claim is true.
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References
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