Herreth Law
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Should I File a Motion for Early Discharge?

early term.jpegIf the football team wins on Sunday, the players often get an extra day off. The same thing is true regarding probation. If you do well, you are entitled to additional time off. But a motion for early release for probation means much more than a temporary respite or a longer lunch hour.

Texas Code of Criminal Procedure Section 42.12.20 states that "Upon the satisfactory fulfillment of the conditions of community supervision, and the expiration of the period of community supervision, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community supervision period and shall discharge the defendant."

At first reading, it looks like early discharge is automatic if the defendant meets the qualifications ("the judge. . . shall amend or modify the original sentence imposed"). But not so fast. Those two little words after this phrase - "if necessary" - change everything. So, the procedure is much more complicated than it appears.

The Early Termination Prizes

One obvious prize is that, if the judge grants the motion, you may no longer be under court supervision. That means no more reporting requirements, no more drop-in visits from the probation officer, and no more driving past the neighborhood bar on the way home.

Even better, the defendant may withdraw a prior plea and the judge may set aside the conviction. That's not exactly the same thing as expunction. The conviction remains in the criminal justice database. And, if you apply for most professional licenses, the probation will pop up. Truth be told, however, many people really don't care. They only care about neighbors and employers.

Early Termination Process

42.12.20 states that the probationer must complete at least a third of the period or two years, whichever is less. All fines and court costs must be paid in full. Furthermore, all ancillary requirements, like community service or educational classes, must be complete.

Generally, an attorney begins with your probation officer. If we can get your probation officer on your side, or at least ensure this person's neutrality, the process will go much smoother.

Next, your attorney will file a motion with the sentencing judge. At a subsequent hearing, the probationer must establish both the following:

· Eligibility: This prong is very straightforward. The probationer either completed the requirements, or the probationer did not do so. Many times, an attorney adds a printout from the probation department which shows a zero balance for fines and court costs.

· Merit: 42.12.20 doesn't really say anything about this requirement. But trust me when I say it's there. Merit usually means acknowledging full personal responsibility, expressing remorse for the crime, demonstrating your merit as a citizen, and showing a need for early discharge.

Persons convicted of DWI, any sex offense, or sentenced to State Jail felonies are not eligible for early discharge.

A probationer's goal should always be early release. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. We routinely handle cases in Parker County and nearby jurisdictions.

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