Early Termination of Probation
For most offenses, a judge may terminate probation after the defendant completes one-third of the probation period or two years, whichever is less. There are a few serious offenses for which a judge lacks legal authority to grant early termination of community supervision.
This page contains general answers to the most common questions about early termination of “straight probation” cases in Travis County, Texas.
- What is early termination of probation?
- How soon can someone get off probation?
- What are the requirements to qualify for early termination?
- What crimes disqualify someone from early termination?
- What is judicial clemency?
This page contains only general information. Every case is different so you should consult a criminal defense attorney about the specific details of your case.
What is early termination of probation?
Texas law gives judges the authority to terminate probation early when a defendant meets certain qualifications. A defendant has no right to have his or her probation terminated early, however, so a judge may choose to require a defendant to serve the entire probation period, even if the defendant qualifies for early termination.
Examples of factors that a judge might consider when deciding to grant early termination include the seriousness of the crime, the defendant’s overall criminal history, the opinion of the defendant’s probation officer, the advice of the prosecutor, and the degree to which probation interferes with the defendant’s employment or living circumstances.
Defendants discharged from probation are eligible for judicial clemency.
How soon can someone get off probation?
A qualified defendant may petition for early termination after completing one-third of the probation period or two years, whichever is less. However, a judge is not required to review the request until the qualified defendant has completed one-half of the probationary period or two years, whichever is more.
When a motion for early termination is filed in Travis County, the Probation Department responds by writing a report but the prosecution does not usually get involved. The local courts traditionally give the Probation Department at least 30 days to produce their report, so be prepared for this delay.
What are the requirements to qualify for early termination?
To qualify for early termination of probation, the defendant:
- must satisfactorily complete at least one-third of the probation period;
- must not be delinquent in payment of restitution, fines, court cost, or fees;
- must complete court-ordered counseling or treatment;
- must satisfactorily fulfill the conditions of probation; and
- must not have been convicted of a disqualifying crime.
Judges have complete discretion regarding whether or not to grant early termination so, although the law only requires that you not be delinquent, your chances are better if all restitution, fines, court costs, and fees are completely paid off before the Probation Department drafts their compliance report.
What crimes disqualify a person from early termination?
Probation may not be reduced or terminated early for the following offenses:
- DWI or other intoxication offenses under Penal Code sections 49.04 to 49.08
- Any felony with a deadly weapon affirmative finding
- Murder, Capital Murder
- Sexual Assault, Aggravated Sexual Assault
- Aggravated Kidnapping
- Unlawful Restraint or Kidnapping if the victim was younger than 17 years of age
- Indecency With a Child
- Online Solicitation of a Minor
- First Degree Injury to a Child
- Sexual Performance by a Child
- Continuous Sexual Abuse of Young Child / Children
- Possession or promotion of child pornography
- Prohibited Sexual Conduct
- Compelling Prostitution
- Repeat offenses of Indecent Exposure
- First Degree Criminal Solicitation
- Criminal Attempt, Criminal Conspiracy, or Criminal Solicitation to commit most of the offenses in this list
- Aggravated Robbery
- First Degree Burglary with intent to commit certain sex crimes
- Manufacture or Delivery of a Controlled Substance Causing Death or Serious Bodily Injury
- Repeat offenses of Manufacture, Delivery, or Possession of a Controlled Substance in a School Zone
The list above only includes offenses that are ineligible as a matter of law under Article 42.12 Sec. 20(b) Code of Criminal Procedure. Beginning in 2017 the applicable law will be Article 42A.701(g).
Any particular judge may have their own personal list of offenses for which early termination is rarely, if ever, granted. For example, Enticing a Child is not in the forbidden list, but it is similar in some respects to a few of the ineligible offenses and that could influence a judge’s decision.
What is judicial clemency?
Many orders terminating probation contain grandiose language that is easily mistaken for judicial clemency. Real judicial clemency happens when a judge signs an order that states not only that the defendant is discharged from probation but also that the verdict was set aside, the defendant was allowed to withdraw his plea, the accusation, complaint, information or indictment was dismissed and the defendant is released from all penalties and disabilities resulting from the offense. Judicial clemency is not available for crimes that do not qualify for early termination of probation.
Judicial clemency is rare and some judges are less willing to grant it than others. When judicial clemency is granted, the case may not be used as a predicate conviction in a subsequent indictment for status crimes like Felon in Possession of a Firearm or Failure to Register as a Sex Offender. For more information see Cuellar v. State, 70 S.W.3d 815, 819 (Tex. Crim. App. 2002) and its progeny.
Unlike most other types of dismissals, judicial clemency does not qualify a person for an expunction, where the records of the case are destroyed. The records will be used against the defendant under the following circumstances:
- If judicial clemency is granted in a felony case, the conviction still prevents the defendant from seeking community supervision from the jury. Yazdchi v. State 428 S.W.3d 831 (Tex. Crim. App. 2014)
- If the defendant is convicted of any future crimes, then the judge in that future case will be made aware of the fact that the defendant was previously convicted or pled guilty in this case.
- If the defendant has (or applies for) a school or childcare license, then the Health and Human Services Commission may consider the case when considering issuing, renewing, denying, or revoking the license.
A defendant that receives judicial clemency may be eligible to have the records of the case sealed by an order of non-disclosure under Texas Government Code 411.081 (f) which was re-codified in 2015 as 411.0715. For details see: Tex. Dep’t of Public Safety v. J.H.J., 274 S.W.3d 803 (Tex.App.-Houston [14th Dist.] 2008, no pet.).
UPDATE: In 2015, the Texas Legislature passed SB 130 to codify the right to seek non-disclosure in clemency cases. Unfortunately, Governor Greg Abbot vetoed the bill so it did not become law. The governor did, however, sign a different 2015 bill allowing non-disclosure of regular probation for victims of human trafficking that were convicted of prosecution.
Unfortunately, this new exception proves the rule that cases resolved with regular probation are not eligible for non-disclosure and therefore undermines the chances of a successful argument based on the DPS v. J.H.J. case mentioned above. Criminal Justice reformers and defendants granted judicial clemency are left hoping that an updated version of SB 130 could pass in the next legislature.
According to a recent decision from the Tenth Court of Appeals, a trial court retains authority to grant judicial clemency for only 30 days after discharging a defendant from probation. This limitation may or may not apply to Travis County, which is subject to the authority of the Third Court of Appeals (opinions from appellate courts in other districts may be persuasive but are not considered mandatory authority).
Note: Because of a strange quirk in the wording of the law, the Governor of Texas does not currently have legal authority to pardon a person if their probation was terminated with judicial clemency.