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Understanding probation: What your attorney can do for you

The Second Chance Law gives Texans a chance for a fresh start

Starting in September, a new law took effect that allows one-time, low-level convictions, such as DWIs, to be sealed from public view. The law, known as HB 3016, is retroactive and applies to offenses that may have occurred many years ago.

This new law, in conjunction with previous laws, allows for many criminal offenses to be sealed or completely erased from a person’s record.

HB 3016 was sent to the House when Madson Castello partners Messina Madson was First Assistant and Acting District Attorney and Kendall Castello was Chief Administrative Attorney for the Dallas District Attorney’s Office. As highest-ranking prosecutors in the DA’s office, we supported the bill and followed its progress through the legislative session.

This new law is a significant move in the right direction, but it is only valuable if Texans know and understand the law.

Now our firm has an opportunity to contribute by informing Texans and offering ourselves as a resource. An attorney can petition the court to have convictions sealed, removing blemishes from otherwise clean criminal histories. When the court seals a conviction, the offense no longer shows up on a criminal background check and is not accessible to the public. If a charge was reduced or dismissed, the law may offer even better options for sealing or expunging the records.

With more than 26 years of criminal experience as prosecutors and defense attorneys, Madson Castello can help.

The possibility of prison can be frightening. So when clients receive probation offers, they can be so relieved that they don’t listen to important details.

Probation means that someone is placed under community supervision by a court. If you’re involved in a criminal case, it’s helpful to understand what different types of probation can mean, and how your attorney can help you achieve the best possible results.

Deferred probation means the court has determined that evidence substantiates guilt, but a finding of guilt is “deferred,” or put off. This allows someone to meet the probation standards given by the court and avoid a criminal conviction. If probation is successfully completed, the individual is not convicted. And after a waiting period, that person can petition the court to have records of the arrest, charge, and probation removed from public disclosure. This can make a big difference in a person’s future college applications, employment possibilities, and other significant life opportunities.

Straight, or basic, probation means you have been convicted of the criminal charge and placed under community supervision. An important aspect of straight probation is that the judgment must specify a person’s “exposure” if she does not meet the terms of probation. Exposure refers to the range of prison time a person can face if probation is violated.

Let’s say that the person is being placed on probation for a second-degree felony, and the punishment range is 2-20 years in prison. The judgment in a straight probation …

1) caps exposure for a designated amount of time (between 2-10 years) and
2) specifies how long the probation will last.

An attorney can negotiate both of these important aspects of a straight probation judgment. For example, with a 2-20 punishment range, your attorney could negotiate for 5 years of probation as well as an exposure limit of 5 years. So if a violation occurred during the 5 years of probation, the most prison time the client would be facing, or exposed to, is 5 years because of the negotiated cap. In a deferred probation, the full range of punishment cannot be capped; therefore, the only negotiation is the length of probation.

If you or a loved one is facing a criminal charge, your attorney should explain your options to your satisfaction, prioritize your needs, and tailor negotiations to your specific requests. Often, the details of a probation judgment become very important down the road.

To Summarize:

Probation – When a court places someone under community supervision

Deferred probation – When evidence substantiates guilt, but a finding of guilt is “deferred,” or put off
• Pros – Conviction can be avoided if probation is not violated, and you could later apply for non-disclosure.
• Con – If probation is violated, you face full range of punishment.

What’s negotiable prior to judgment
• length of probation time

Straight (basic) probation – When conviction has occurred, and the court has ordered community supervision
• Pro – Punishment range could be negotiated in case there’s a violation.
• Con – There’s no opportunity for avoiding conviction or applying for non-disclosure.

What’s negotiable prior to judgment
• length of probation time
• exposure (the range of prison time faced if probation is violated)