Can the judge actually take my back time away?

UPDATED: Oct 1, 2022

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Can the judge actually take my back time away?

I signed for 3 years deferred probation in March 2015 for a state jail felony. First felony offense. I have been on it for going on 4 years now due to a year extension on my last violation. I have violated 3 times and have some where around 17 months back time from being incarcerated from each of the 3 times I violated. None of them were from a new charge all were technical violations. On my last violation i wanted to be done with this and take my time. I went into the courtroom and my judge told me that I basically wasnt going to get my first felony conviction in her courtroom. She told me that it was either 6 months SAFP and get back out reinstated on probation, or 2 years state jail no back time. Can my judge actually take my back time away? All 17 months of incarceration were done while being on probation, they were just from my violations like I said above.

Asked on January 6, 2019 under Criminal Law, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

A judge can make certain findings on back-time....but a defendant can never be sentenced to a length of time greater than the max sentence.  So, for example, if you have 6 months back time, the most the judge can sentence you for is 1.5 years for a state jail offense (because 2 years is the max sentence--- and the 6 months plus 1.5 year sentence equals two years).
The exception, however, is jail time as a condition or probation.  If any of your prior time was as sanctions for probation violations to be served as a condition of your probation, then the judge is not required to count those days towards your back time.  However, the max time that can be assessed or imposed as a condition of probation is 6 months.  Anything over 6 months should be added into the back time equation.  In this situation, the judge isn't taking away your back time....the problem is that it has already been applied to a different obligation, namely your community supervision requirement.

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