POST CONVICTION SUPERVISION

There are substantially different eligibility requirements between deferred adjudication and post conviction community supervision.  There are also different requirements for post conviction community supervision granted by a judge rather than a jury.

Judge Ordered Eligibility

The state may agree to recommend that a judge convict, sentence, or place a defendant on post conviction community supervision if the offense is not:

• capital murder;
• criminal solicitation of capital murder;
• murder;
• aggravated sexual assault;
• aggravated kidnapping;
• indecency with a child by contact;
• sexual assault of a child;
• sexual assault of an adult;
• sexual performance by a child;
• injury to a child punishable as first degree felony;
• any felony offense if the defendant used or exhibited a deadly weapon during commission of the felony offense or during immediate flight therefrom or was a party to the offense and knew that a deadly weapon would be used or exhibited;
• a drug offense if the punishment may be increased with an affirmative drug free zone finding, and the defendant has a previous drug conviction with such a finding;
• a drug delivery offense with an affirmative fining that the defendant used or attempted to use a child younger than 18 years of age to commit or asit in the commission of the offense.
• any offense if the defendant has previously been convicted for another offend with a finding the defendant selected the victim primarily because of a bias or prejudice against a group.

Jury Ordered Eligibility

If a defendant is not eligible for community supervision from a judge but is eligible from a jury, the defendant may seek an agreement that maximizes the opportunity to be granted community service from the jury.  A defendant is not eligible for community supervision from  a jury for the following offenses:

• murder;
• murder with a hate crime finding;
• indecency with a child;
• aggravated kidnapping (with intent to violate or abuse victim sexually);
• aggravated sexual assault if victim younger than 14 years of age;
• sexual performance by a child;
• second conviction for drug offense with an affirmative drug free zone finding;
• second conviction for any offense with a hate crime finding.

Assuming the jury did not convict the defendant for one of the above disqualifying offenses, after convicting a defendant and imposing some form of confinement, a jury may agree to suspend the sentence and grant post conviction community supervision if:

• the sentence does not exceed 10 years of imprisonment;
• the defendant has not previously been convicted of a felony, and gives notice of that fact in a sworn motion filed before trial and proved during trial; and
• the jury finds the motion is true.

A jury is prevented from granting community for some but not all types of violent crimes that make a defendant ineligible for such community supervision form a judge.  An affirmative deadly weapon finding does not prevent a jury from granting community supervision.

State Jail Felony

For certain state jail felony offenses, depending on the date of the offense or sentencing, the criminal history, or the type of offense, the state may not plea bargain for post-conviction community supervision, because the judge is required to police a convicted defendant on community supervision in every case.

Length of Supervision

A judge, not jury, decides the length of community supervision.  The state may agree to recommend the initial length of post conviction supervision.  The time period, however, must be within the range permitted by law.

• First degree felony: 5-10 years
• Second degree felony: 2-10 years
• Third degree felony: 2-10 years
• Third degree felony for properly or drug offense: 2-5 years
• State jail felony: 2-5 years
• Class A or B misdemeanor: 1 day to 2 years

If committed after August 31. 1995, the minimum period of supervision is five years for the following felony sexual offenses:

• sexual performance by a child;
• possession or promotion of child pornography;
• indecency with a child;
• sexual assault;
• aggravated sexual assault;
• prohibited sexual conduct;
• aggravated kidnapping (with intent to violate or abuse the victim sexually);
• burglary of habitation (with intent to commit a designated sexual offense).

Early Termination 

Early termination of a period of post conviction supervision may not be the subject of a plea agreement for an intoxication offense, an offense requiring a defendant to register as a sex offender, or a state jail felony, because a judge is prohibited from granting a request for early termination for those offenses.  For any other offense, the state may agree to recommend early termination, but only after a defendant has served one third or two years of the supervision, whichever is less.

For a defendant placed on post conviction community supervision after August 31, 2007, for any offense other than an intoxication offense, an offense triggering sex offender registration, or an offend listed under article 32.12 section 3g, a judge must review the record and consider whether to reduce or terminate the supervision after the defendant has served  one half of the period of supervision or two years, whichever is more.  However, the judge is not required to reduce or terminate supervision, only to consider the issue.  In fact, a review is not even required if the defendant is delinquent in paying restitution, fines, costs, or  fees, or has not completed court ordered counseling or treatment.  Before conducting the review, the judge must give the state and defendant notice.  Should the judge deny early termination, the judge also is required to notify the defendant in writing of the unfulfilled conditions of community supervision.