Texas Unauthorized Absence from a Community Corrections Facility

Unauthorized absence from a community corrections facility is a state jail felony under Texas Penal Code § 38.113 — 180 days to two years in a state jail facility and a fine of up to $10,000. It applies to people who fail to report to, or leave without approval, a residential program such as a SAFPF, restitution center, or court-ordered treatment facility, or a county correctional center or community-service assignment ordered as part of community supervision. Below: the controlling statute text, the full punishment range, how the charge differs from escape and from an ordinary probation violation, common defense theories, and what to do if you have been charged in Collin, Dallas, Denton, or Tarrant County.

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What Is Unauthorized Absence Under Texas Law?

Texas Penal Code § 38.113 — its full title is “Unauthorized Absence from Community Corrections Facility, County Correctional Center, or Assignment Site” — makes it a felony to walk away from, or fail to show up for, a residential or reporting program a court ordered as part of community supervision. Under subsection (a), a person commits the offense if the person: “(1) is sentenced to or is required as a condition of community supervision or correctional programming to submit to a period of detention or treatment in a community corrections facility or county correctional center; (2) fails to report to or leaves the facility, the center, or a community service assignment site as directed by the court, community supervision and corrections department supervising the person, or director of the facility or center in which the person is detained or treated, as appropriate; and (3) in failing to report or leaving acts without the approval of the court, the community supervision and corrections department supervising the person, or the director of the facility or center in which the person is detained or treated.” Subsection (b) then supplies the grade in one line: “An offense under this section is a state jail felony.”

Three ideas do the work. The first is the place: a community corrections facility, a county correctional center, or a community-service assignment site. The second is the conduct, which comes in two flavors — a failure to report (never showing up when directed) and a departure (leaving after you have arrived). The third, and the one most cases turn on, is the phrase “without the approval.” The offense is not simply being absent; it is being absent without the sign-off of the court, the supervising community supervision and corrections department (the CSCD, or probation department), or the facility director. Approval given by any of those authorities defeats the charge.

What is a “community corrections facility”? The Penal Code does not define the term, but Government Code § 509.001 does, and it lists the types most people are ordered into: a restitution center; a court residential treatment facility; a substance abuse treatment facility (which includes a Substance Abuse Felony Punishment Facility, or SAFPF); a custody facility or boot camp; and a facility for offenders with a mental impairment. These are residential programs — a judge sends a person there as a condition of probation instead of, or on the way out of, prison. A “county correctional center” is a county-run confinement or programming center, and a “community service assignment site” is where court-ordered community service is performed. Section 38.113 reaches a failure to report to, or an unapproved departure from, any of them.

The statute sits in Chapter 38 of the Penal Code — “Obstructing Governmental Operation” — alongside escape under § 38.06 and bail jumping and failure to appear under § 38.10. Its neighbors are the tell: the Legislature grouped these offenses because each punishes a person for defeating a court's control over where the person is supposed to be. Section 38.113 is the piece aimed specifically at the community-corrections layer — the residential and reporting conditions that sit between straight probation and prison.

The offense is not new. It was added by Acts 1993, 73rd Legislature, Chapter 900, effective September 1, 1994, and amended by Acts 1995, 74th Legislature, Chapter 318, effective September 1, 1995 — the amendment that broadened it to reach assignment sites and correctional programming in the form the statute carries today. The grade has been a state jail felony throughout.

What Are the Penalties for Unauthorized Absence?

Section 38.113(b) is unambiguous: the offense “is a state jail felony,” with no lesser or greater internal tier. Under Penal Code § 12.35, a state jail felony carries 180 days to 2 years in a state jail facility — time generally served day-for-day, without parole eligibility, subject only to limited diligent-participation credit — plus a fine of up to $10,000. Because state jail time is served flat, a two-year sentence here is a very different thing from a two-year sentence on a third-degree felony that carries parole eligibility.

Two features of this particular charge sharpen the exposure. First, the person is, by definition, already under a sentence or supervision in another case, so a § 38.113 conviction rarely arrives alone — it lands on top of whatever the court does with the underlying matter. Second, the new sentence can be stacked: under Code of Criminal Procedure Article 42.08, a court may order the § 38.113 sentence to run consecutively to the sentence in the underlying case rather than at the same time. Whether it is offered as probation, and whether it is stacked, depends on the facts, the county, and the court.

The limitations period follows the default felony rule: three years under Code of Criminal Procedure Article 12.01, running from the date of the failure to report or the unapproved departure. Section 38.113 is not among the offenses with an extended period.

Elements the State Must Prove

To convict under § 38.113, the State must prove every element beyond a reasonable doubt:

1. A qualifying placement (the status element)

The person must have been sentenced to, or required as a condition of community supervision or correctional programming to submit to, a period of detention or treatment in a community corrections facility or county correctional center. If the program the person left does not fit one of those categories — or an assignment site — the statute does not apply. This is the first thing to test: what, exactly, was the person ordered into, and under what order.

2. A failure to report or a departure (the conduct element)

Either not reporting to the facility, center, or community-service assignment site as directed, or leaving it. The direction must come from the court, the supervising CSCD, or the facility or center director. The charging instrument should identify which — a failure to report or a departure — and by whose direction.

3. Without approval (the authorization element)

The failure to report or the departure must be without the approval of the court, the supervising CSCD, or the facility or center director. Approval from any one of those authorities is enough to defeat the offense. A pass, furlough, medical release, or approved transfer is the difference between a lawful absence and a felony.

Notice what is not in the statute: § 38.113 does not spell out a culpable mental state on its face. Under Penal Code § 6.02, when a statute is silent, the State must still prove a mental state of at least recklessness unless the offense plainly dispenses with one. In practice, that means a genuinely accidental or unavoidable absence — a person physically prevented from returning, or one who reasonably believed a pass covered the time — is contestable ground, because the State must show the absence was a culpable choice, not a misfortune.

How Do Prosecutors Build an Unauthorized Absence Case?

These cases are records cases. Because the person was already in the system, the State's proof comes almost entirely from the supervision and facility file rather than from a crime scene:

• The judgment and conditions order. The order placing the person in the facility, center, or assignment — proof of the qualifying placement element and of what the person was directed to do.
• Facility sign-in and count records. Intake logs, bed checks, head counts, and the incident report documenting the moment staff recorded the person as absent or a no-show.
• Pass and furlough documentation. The sheet that shows whether a pass was issued, for what window, and whether the person exceeded it — the single most important document, because it goes straight to the “without approval” element.
• CSCD (probation) file. Directives to report, contact notes, and the supervising officer's records of what the person was told and when.
• Electronic monitoring and location data. For programs using ankle monitors or check-in apps, GPS breadcrumbs and tamper alerts that place the person outside the program's boundaries.
• Statements. Anything the person said to staff or to the probation officer about why they left or did not return — often the State's best evidence that the absence was a choice.

One rhythm sets these cases apart from a street arrest: the offense is documented before it is charged. Staff record the absence, the incident report is written, a warrant issues, and the felony is filed — sometimes only after the person is picked up on the underlying revocation. That paper trail cuts both ways. It is the State's case, but it is also where the defense finds the pass that was issued, the medical release that was granted, or the transfer order that nobody entered into the system.

Common Fact Patterns in Texas Unauthorized Absence Cases

Most § 38.113 filings in Collin, Dallas, Denton, and Tarrant Counties grow out of a handful of recurring situations, and very few of them involve a dramatic escape:

• Walking out of a treatment program. A person ordered into a SAFPF, a court residential treatment facility, or an inpatient substance-abuse program leaves before completing it — sometimes in the grip of the very addiction the program was meant to treat. The departure is the offense; the underlying probation is separately at risk.
• Failing to return from an authorized pass. The person had permission to leave — a work pass, a family visit, a medical appointment — and did not come back on time, or at all. These cases live entirely inside the “without approval” element: lawful to leave, unlawful to overstay.
• Never reporting to begin with. A judge orders a person to report to a restitution center or a boot-camp program by a date certain, and the person never shows. A failure to report is expressly covered, not just a departure after arrival.
• Leaving a community-service assignment. Walking off a court-ordered community-service site, or abandoning it partway through, when the assignment was a condition of supervision.
• Restitution-center curfew and reporting failures. Residents of restitution centers hold jobs during the day and return at night; a person who stops returning, or who leaves during restricted hours without sign-off, can face the charge.

Hypothetical example (not a real case): a person on deferred adjudication is ordered into a 90-day SAFPF program in lieu of prison. Three weeks in, struggling and afraid, he walks off the grounds during a shift change. He has not hurt anyone and has committed no new street crime — but the departure supports a § 38.113 state-jail-felony charge, and his probation department will simultaneously file a motion to adjudicate the deferred case. Two problems, one walk-away.

What Defenses Work Against an Unauthorized Absence Charge?

Because approval and the required mental state are built into the offense, most defenses attack one of those two — and both live in the facility's own paperwork. Defense theories L and L Law Group evaluates on every § 38.113 case:

• The absence was approved. The statute reaches only a failure to report or a departure “without the approval” of the court, the CSCD, or the facility director. A pass, furlough, medical release, or approved transfer — even one the facility failed to log correctly — defeats the offense. Pulling the pass sheet and the sign-in logs is the first order of business.
• No culpable mental state. Where § 38.113 is silent, § 6.02 supplies a minimum mental state. A person whose car broke down, who was hospitalized, whose transportation never arrived, or who reasonably misunderstood a curfew or pass window did not make the culpable choice the State must prove. Contemporaneous proof — a tow receipt, an ER record, a text to staff — matters enormously.
• Necessity. Under Penal Code § 9.22, leaving can be justified where it was immediately necessary to avoid imminent harm and no lawful alternative existed — for example, a credible threat of violence inside the facility. Texas courts apply necessity narrowly, and generally expect grievance and reporting channels to be used first, but the defense fits some fact patterns.
• The program did not qualify. The status element requires a community corrections facility, county correctional center, or community-service assignment site as the statute and Government Code § 509.001 define them. Where the person left some other arrangement — a sober-living house that is not a court-ordered facility, for instance — the State may have charged the wrong offense.
• Attribution and records gaps. The State must prove this person was absent without approval on the date alleged. Miscounts, mismatched intake records, staffing-log errors, and monitoring-data gaps all create reasonable doubt, particularly in busy facilities.
• Charge it as the revocation, not a new felony. Often the strongest posture is not a trial defense at all: persuading the prosecutor that the walk-away is fully answered by the motion to revoke or adjudicate in the underlying case, so that a separate § 38.113 felony conviction is unnecessary. That negotiation is where much of the real work happens.

Hypothetical example (not a real case): a restitution-center resident holds a night-shift job and is authorized to be out until 7 a.m. His shift runs long, his ride falls through, and he returns at 9 a.m., texting his case manager at 6:45 to say he is stuck. Charged with unauthorized absence, his defense is the approval he had and the mental state he lacked: he was permitted to be out, he tried to communicate, and a two-hour, documented delay is not the culpable, unapproved departure the statute punishes.

What Unauthorized Absence Means for Your Probation (MTR/MTA)

This is the point clients most need to understand: a § 38.113 charge and a probation-revocation proceeding are two separate things arising from one act, and they run on different tracks. The walk-away is (1) a brand-new state jail felony, filed as its own case, and (2) a violation of the community supervision the person was already serving — which the probation department answers with a motion to revoke (an MTR, on straight probation) or a motion to adjudicate (an MTA, on deferred adjudication).

The two proceedings have very different rules. The new felony must be proved to a jury beyond a reasonable doubt, with the full protections of a criminal trial. The revocation is decided by a judge alone, under a mere preponderance of the evidence standard — so it is easier for the State to prove the violation than to prove the felony. And the stakes on the revocation side depend on which kind of supervision was in place:

• Straight (regular) community supervision. If the court revokes, it can impose the sentence that was originally suspended — but no more than that. The ceiling is the sentence already assessed.
• Deferred adjudication. If the court adjudicates, there is no prior sentence to cap the outcome. The judge convicts and then sentences anywhere within the full statutory range of the original offense, which can be dramatically higher than what a straight-probation revocation would allow. This is why leaving a program while on deferred adjudication is especially dangerous.

Handled together, the two matters can often be resolved with a single, coordinated disposition — for instance, a negotiated revocation or adjudication that accounts for the absence, paired with a dismissal or a § 12.44 reduction of the new § 38.113 charge. Handled separately or badly, they can compound: a new felony conviction and a full-range sentence on the underlying case. The interplay is the whole ballgame, and it is why these cases should not be treated as ordinary probation hiccups.

Can an Unauthorized Absence Charge Be Dismissed, Reduced, or Cleared From Your Record?

Three procedural windows matter most. First, the grand jury: the state jail felony must be indicted, and a documented pre-indictment presentation — the pass that was issued, the medical release, the hardship that caused the absence, the fact that the revocation already resolves the conduct — can produce a no-bill or a decision not to pursue a separate felony. Second, the grade itself: Penal Code § 12.44 lets a court punish a state jail felony as a Class A misdemeanor, and lets the prosecutor agree to prosecute it as one — a meaningful destination when the absence grew out of confusion, addiction, or hardship rather than flight. Third, the record: an acquittal or a dismissal without conviction can open expunction eligibility, and a successfully completed deferred adjudication may support an order of nondisclosure under Government Code Chapter 411, Subchapter E-1.

The converse holds as well: a final felony conviction — even a probated one — generally remains on the record permanently, and here it compounds whatever happens on the underlying case. Because the new charge and the revocation move together, the early defense goal is usually to resolve both in one negotiation, so the client does not leave court with both a new felony record and a maximized sentence in the original matter.

County-by-County Practice Notes: Collin, Dallas, Denton & Tarrant

Collin County. Felony § 38.113 cases are indicted and heard in the district courts at the Collin County Courthouse (the Russell A. Steindam Courts Building) in McKinney, and the Collin County CSCD supervises the community-supervision side. Because the same conduct usually spawns a motion to revoke or adjudicate, the new felony and the underlying case are frequently before related courts at once — a reason to coordinate the defense of both from the start.

Dallas County. Cases sit at the Frank Crowley Courts Building near downtown Dallas, with the Dallas County CSCD handling supervision and residential placements. Felony filings pass through District Attorney intake screening, which gives a documented pre-indictment presentation — pass sheets, treatment-program records, hardship proof — a real audience before an indictment is sought.

Tarrant County. Proceedings run through the Tim Curry Criminal Justice Center in Fort Worth, supervised by the Tarrant County CSCD. Because the county operates several residential and treatment placements, unauthorized-absence charges here often turn on that specific facility's own logs and pass records — the file that will either make or break the “without approval” element.

Denton County. Cases are handled at the Denton County courts in Denton, with the Denton County CSCD supervising community corrections. As in the other counties, the practical defense question is whether the walk-away is best answered by the revocation alone, and whether the facility paperwork supports an approval or mental-state defense to the separate felony.

What Happens After an Unauthorized Absence Charge: Process & Timeline

The procedural spine is the same across North Texas, with wrinkles specific to this offense:

1. The absence is documented first. Unlike a street case, this one usually begins with a facility incident report and a probation-department notice rather than an on-scene arrest. A warrant follows, and the person is often arrested on the underlying revocation and the new charge together.
2. Arrest and magistration. Within roughly 48 hours of arrest, a magistrate delivers the warnings required by Code of Criminal Procedure Article 15.17 and sets bond — though a pending motion to revoke or adjudicate can affect whether bond is available at all.
3. Two matters open at once. The new § 38.113 case and the motion to revoke or adjudicate proceed in parallel. The revocation is judge-decided on a preponderance standard; the new felony carries the full protections of a criminal prosecution.
4. Indictment. The state jail felony must be indicted by a grand jury. The pre-indictment window is where pass records, treatment documentation, and the argument that the revocation already answers the conduct matter most.
5. Discovery and motions. Under Article 39.14 (the Michael Morton Act), the defense obtains the facility file — sign-in logs, pass sheets, incident reports, monitoring data — followed by any suppression motions and by challenges to whether the placement qualifies under the statute.
6. Resolution. Dismissal, a § 12.44 misdemeanor disposition, deferred adjudication, community supervision, or trial. Where a companion tampering count under § 37.09 is in play, the resolution of that higher-grade count usually drives the negotiation.

Enhancements & Collateral Consequences

Section 38.113 has no internal enhancement ladder — it is a state jail felony, full stop — but the general rules can raise the range. Under § 12.35(c), a state jail felony is punished as a third-degree felony — 2 to 10 years — if a deadly weapon was used or exhibited during the offense or the person has certain listed prior convictions, and § 12.425 raises the range further for repeat state-jail offenders. The exposure that hurts most, though, is not an enhancement at all — it is the underlying case. The same walk-away that produces this felony also drives the motion to revoke or adjudicate, and on deferred adjudication that can mean a sentence anywhere in the full range of the original offense. And under Article 42.08, the § 38.113 sentence can be stacked on top of it.

A conviction's collateral reach is the longer-term problem:

• Felony record. A state jail felony is a felony for nearly every collateral purpose — employment screening, housing, professional licensing under Occupations Code Chapter 53, and eligibility questions on applications of every kind.
• Supervision eligibility. A new felony conviction for absconding from a program can make judges and prosecutors far less willing to offer community supervision — or another residential placement — in this or future cases. It is, in effect, evidence that the person did not complete a court-ordered program.
• Firearms. A felony conviction bars possession for five years after release from confinement or supervision, and after that only at the person's own premises, under Penal Code § 46.04; federal law imposes a continuing prohibition under 18 U.S.C. § 922(g)(1) that does not honor the Texas at-home allowance.
• Immigration. Noncitizens face case-specific risk and need immigration advice before accepting any plea.

One boundary is worth stating plainly, because clients ask: unauthorized absence is not a reportable offense under Code of Criminal Procedure Chapter 62, so a conviction does not itself require sex-offender registration, and it is not a family-violence finding offense. Its formal collateral consequences are those of the felony record — and, uniquely here, the damage it does to the underlying case.

How § 38.113 Differs From Escape and Related Charges

Unauthorized absence sits among a family of Chapter 38 offenses that all punish defeating a court's control over where a person must be. The distinctions decide which statute applies — and how much is at stake:

• Escape — § 38.06. The closest cousin, and the most important line to get right. Escape requires that the person be in custody or confinement and depart from it, and it is graded by circumstance — a Class A misdemeanor at the base, rising to third-, second-, or first-degree felony as the underlying offense, injury, or a deadly weapon come into play. Section 38.113 is narrower and flatter: it applies specifically to community-corrections placements and community-service assignments and is always a state jail felony. As a rule of thumb, leaving a jail or secure lockup is escape; leaving a SAFPF, restitution center, boot camp, or treatment facility ordered as a condition of supervision is unauthorized absence.
• Bail jumping / failure to appear — § 38.10. This punishes not showing up for court after being released on bail. It is about missing a court setting, not a facility; § 38.113 is about missing or leaving a program. A person out on bond who skips a hearing faces § 38.10, while a person placed in a facility as a supervision condition who leaves faces § 38.113.
• Motion to revoke / adjudicate. Not a separate crime at all, but the proceeding the same walk-away triggers in the underlying case. The revocation is judge-decided on a preponderance standard; § 38.113 is a new felony that must be proved beyond a reasonable doubt. The two run together, and the whole defense strategy usually centers on how they resolve relative to each other.
• Failure to comply with community-service or program conditions. Many program failures are handled purely as supervision violations — technical breaches answered by the revocation process alone. Section 38.113 is what elevates a particular kind of failure — not reporting to, or leaving, a qualifying facility or assignment without approval — into a standalone felony.
• Related supervision context. Because these cases live at the intersection of a new charge and an old case, our probation revocation defense page explains how the revocation half is handled, and the Texas Charges encyclopedia covers the neighboring Chapter 38 offenses in depth.