Early Release from Probation

Did you know that it is possible for the court to give you Early Release from Probation in most cases? As long as you keep up with all of the conditions, the law does allow probation to end early. There are two main opportunities for the judge to review your record for early release: Discretionary and “Mandatory”.

Discretionary Review for Early Release from Probation

Texas Code of Criminal Procedure 42A.701(a) states: At any time after completing the lesser of one-third (1/3) or two years of probation, the judge MAY reduce or terminate probation. The word “may” in a statute like this means that the judge has discretion to perform or not perform a specific action. Here, it means that the judge has no obligation to reduce or terminate probation at the 1/3 mark. At the same time, the judge can reduce or release probation if satisfied with your record and performance on probation. While this is an option, most judges likely will not grant early release at the 1/3 mark.

“Mandatory” Review

The word “mandatory” is in quotes because, while this review is indeed mandatory, it rarely happens in practice. Texas Code of Criminal Procedure 42A.701(b) states:

• At the greater of two years or the halfway mark of probation, the judge SHALL review your record and consider whether to grant early release. The judge cannot perform this review if:
  • You have not paid your fees, fines, restitution, etc. that you are able to pay; or
  • You have not completed court-ordered counseling or treatment.

As you can see, there are a couple of exceptions. However, the word “shall” in a statute such as this means the judge is required to review your record at the halfway point. That said, and as mentioned above, this rarely happens in practice. This is because the law sometimes defies common sense. When used against the government, “shall” tends be interpreted as “may” unless stated otherwise. In other words, despite using different words, most courts treat both reviews mentioned as discretionary, meaning they have no obligation to do any review.

The Biggest Issue with Early Release from Probation

There is one HUGE issue with the early release statute. Before touching on that, there are two other exceptions that are smaller issues (but make a bit more sense). First, you are not eligible for early release for a conviction that requires sex offender registration. Second, major offenses (murder, trafficking, prostitution, etc.) are similarly not eligible for early release. While those are still issues, they pale in comparison to the elephant in the room.

That elephant is this: DWI are NOT eligible for early release. The Texas Legislature apparently decided that even misdemeanor DWI is equivalent to other heavy felonies. The statute specifically states that it does not apply to “an offense under Sections 49.04 – 49.08, Penal Code” which is the section containing intoxication-related offenses. In other words, if you receive probation for misdemeanor DWI, you must complete the entire probation. While there are a couple positives (i.e., potential for early interlock removal or non-reporting probation), this exclusion from early release is completely unjust. A misdemeanor DWI should not be put in the same category as murder and trafficking. Period.

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.