Sentencing Options
Choosing the Right Path for Your Case
Not all criminal cases are winnable and more cases end in plea bargains than acquittals or dismissals. It’s important to hire an attorney with significant trial experience that’s not afraid to fight your case in a court of law. However, it’s also important to hire an attorney with significant enough trial experience that he knows when not to. Criminal defense is typically not all or nothing. Your attorney’s ability to negotiate an agreement in your criminal case is important. Additionally, there is a third way of resolving cases known as an open plea. An open plea is where a defendant pleas guilty to the offense and has a judge or jury assess punishment rather than taking his chances with a trial or accepting a plea bargain. At first the idea of an open plea is counter-intuitive. It requires a confession to the offense and does not secure a plea bargain. If you think a lot can go wrong with an open plea because you’re handing the state evidence to use against you, you’re right. However, with the right case and the right attorney an open plea should result in a lighter sentence than the plea bargain. Achieving good results an attorney who can predict the Trial Court Judges’ behavior and accurately evaluate cases. This takes practice and is something that new attorneys may find difficult.
Punishment Ranges
The punishment ranges for Texas cases are listed in the Table below:
| Level of Offense | Max
Fine |
Confinement | Probation | Deferred Adjudication |
| Habitual Offender | $10,000 | 25 years – life | Ineligible | Ineligible |
| Repeat Offender | $10,000 | 15 years – life | Ineligible | Ineligible |
| 1st Degree Felony | $10,000 | 5 – 99 years | 5 -10 years | 5 -10 years |
| 2nd Degree Felony | $10,000 | 2 – 20 years | 2 – 10 years | 2 – 10 years |
| 3rd Degree Felony | $10,000 | 2 – 10 years | 2 – 10 years | 2 – 10 years |
| State Jail Felony | $10,000 | 180 days – 2 years | 2 – 5 years | 2 – 5 years |
| Class A Misdemeanor | $4000 | 1 day – 365 days | Up to 2 years | Up to 2 years |
| Class B Misdemeanor | $2000 | 1 day – 180 days | Up to 2 years | Up to 2 years |
| Class C Misdemeanor | $500 | Fine only offense | Fine only offense | Fine only offense |
Probation
Probation and Deferred Adjudication are available for most cases in Texas. Probation creates conditional liberty. Some probationers describe it as one foot in and one foot out of prison. The standard conditions for probation are found in section 42.12 of the Texas Penal Code. However, actual conditions may vary by county and by judge. In close cases, or cases where the defendant is on the cusp of going to prison a Court may make the conditions of parole stricter. For example, a judge can require up to 180 days confinement as a condition of probation in most felony cases, or require the defendant to enter prison style drug rehabilitation programs that can last for up to two years. Probation may be revoked for any violation regardless of how minor the infraction. A probated sentence is a conviction and has the same effect on a person’s criminal history as going to prison, state jail, or county jail. Under current Texas law a conviction from a probation will never come off a persons’ criminal record. Passage of time is irrelevant. Unlike deferred adjudication, probation offers no mechanism to eliminate or remove a record of conviction or an arrest record from a persons’ criminal history. However, probation is can be better than deferred adjudication in some circumstances. This is because upon a violation of probation a person’s sentence is limited to their term of probation. For example, where a person is sentenced to six years of probation their maximum sentence for a violation becomes six years. This is significant for a person who receives six years of
probation for a 1st degree felony. If their probation is revoked their maximum punishment is six years confinement even though the same person was facing a life sentence before being placed on probation. A probationer may be discharged from probation before their probationary term is complete. This is known as early release. In situations where early release is possible a probationer may be discharged once they serve the lesser of 1/3rd of their probationary term 2 years of probation. The same rules apply for deferred adjudication. This means that a person placed on probation for eight years for a second degree felony may be discharged from probation after serving 2 years on probation even though that’s only ¼ of the probationary term. A person placed on probation for three years is eligible for early termination of probation at the one year.
Deferred Adjudication
Deferred adjudication does not result in a conviction unless the deferred adjudication is later revoked. Deferred adjudication is always better than probation for a defendant that successfully completes their community supervision. Deferred adjudication is not a conviction and a person successfully completing deferred adjudication will never show a conviction on their criminal history. However the arrest will remain unless an order of non-disclosure is granted. Deferred adjudication is not available in all cases. For example, deferred adjudication is not available for most alcohol related offenses other than class C misdemeanors. In most cases a person may be released early from deferred adjudication.
Upon successful completion of deferred adjudication the Court may grant an order of non-disclosure. This doesn’t happen automatically. A petition must be filed and evidence is presented at a hearing. If the order is granted the arrest record will not be released to any entity not affiliated with law enforcement. A person is eligible for an order of non-disclosure 5 years after successfully completing deferred adjudication on a felony case and two years after completing deferred adjudication on a misdemeanor theft case. Eligibility is immediate after successfully completing deferred adjudication in all other cases where a person is eligible for an order of non-disclosure.
Parole
Parole should be almost identical to probation or deferred. The legal rights of individuals on probation or deferred adjudication and parole are almost identical. However, in Texas the parole system suffers from a lack of court oversight, an inadequate number of attorneys working for the state, and an inadequate number of attorneys representing defendants trying to make parole or facing parole revocations. The result is a system that often fails to give proper weight, and sometimes fails to give any weight, to the constitutional rights of the accused. Further, there is no ability to plea bargain a parole revocation. The irony is that in this system suffering from a lack of qualified employees that tend to disregard the constitutional rights of the accused, a qualified attorney can make a significant difference in the outcome of a revocation.
In a parole revocation hearing none of the individuals present at the hearing have the power to determine the fate of the accused. At the conclusion of the “adjustment” phase of the hearing both the parole officer and the hearing officer make recommendations to the parole board which is free to accept or reject their recommendations. The Parole Board goes against the recommendations of the hearing officer and parole officer with surprising frequency and often to the benefit of the parolee. Although there is no way to plea bargain a pending parole revocation, many parolees who have violated their parole are sent to an intermediate sanction facility, ISF, rather than to prison. However, even when it’s clear that the hearing officer and parole officer will recommend ISF it’s important to present a strong case in favor of the parolee because the recommendations by themselves may not be enough to convince the Board to keep the parolee out of prison.
