3g offenses — excluded from judge-recommended probation

Under Texas Code of Criminal Procedure article 42A.054, judges cannot order community supervision for "3g offenses" — including murder, aggravated kidnapping, indecency with a child by contact, aggravated sexual assault, aggravated robbery, and others. A jury can still recommend probation for most of these offenses, making jury-trial election a critical strategic decision.

The 3g offense list

Texas Code of Criminal Procedure article 42A.054 lists offenses excluded from judge-recommended community supervision. The list includes most violent felonies, certain sexual offenses, and selected offenses with deadly-weapon findings.

Under article 42A.054, the court cannot order community supervision for a defendant adjudged guilty of:

1. Murder under Penal Code § 19.02;
2. Capital murder under § 19.03;
3. Aggravated kidnapping under § 20.04;
4. Trafficking of persons under § 20A.02;
5. Continuous trafficking of persons under § 20A.03;
6. Indecency with a child under § 21.11(a)(1);
7. Aggravated sexual assault under § 22.021;
8. Sexual assault under § 22.011;
9. Aggravated robbery under § 29.03;
10. Continuous sexual abuse of young child or disabled individual under § 21.02;
11. Compelling prostitution under § 43.05 of a person younger than 18 years of age;
12. Selected offenses with a deadly-weapon finding (where the deadly weapon was used or exhibited during commission);
13. Offenses described in Health and Safety Code § 481 with affirmative findings of deadly weapon.

This list captures most violent felonies and child-sexual-offense felonies. The exclusion applies only to judge-recommended probation, not to jury-recommended probation (with specific exceptions for some sexual offenses involving children under 14).

Jury-recommended probation as a strategic option

For 3g offenses where the judge cannot order probation, the jury can recommend probation under article 42A.055 if the punishment phase is tried to a jury. This procedural option drives major trial-strategy decisions.

Under Texas Code of Criminal Procedure article 42A.055, a jury may recommend community supervision for a defendant convicted of any offense for which the court is authorized to grant community supervision — and the article 42A.054 exclusions for "judge-recommended" probation do not apply when the punishment phase is tried to the jury.

The mechanics: the defendant files a sworn application for community supervision before trial, asserting eligibility. If the jury convicts at the guilt phase, the punishment phase is tried (either to the same jury or to the court depending on defendant's election). If tried to the jury, the jury can recommend probation along with whatever prison sentence it finds appropriate. The judge must follow the jury's probation recommendation.

Exception: Article 42A.054(b) explicitly bars even jury-recommended probation for: capital murder, certain offenses under Penal Code § 21.11(a)(1)/21.02 against children younger than 14, and § 22.021(f) cases involving children younger than 6. For these offenses, neither judge nor jury can grant probation. The defendant must serve any imprisonment sentence imposed.

This procedural framework means the choice of jury vs. court punishment phase is often more important than the choice of jury vs. court guilt phase. A defendant facing aggravated robbery (judge cannot probate, jury can) has a strong reason to elect jury punishment even after losing the guilt phase.

Trial-strategy implications

The 3g framework drives major pre-trial decisions: charge bargaining (whether to plead to a non-3g offense), jury election (jury vs. court punishment phase), and punishment-phase preparation. Defense counsel familiar with the 3g rules can identify strategic opportunities others miss.

Charge bargaining is often shaped by 3g status. A defendant facing aggravated assault with a deadly-weapon finding (3g) may seek a plea to plain aggravated assault without the deadly-weapon finding (non-3g), preserving the judge-probation option. Prosecutors sometimes hold deadly-weapon findings in reserve as bargaining leverage, knowing that dropping the finding opens probation eligibility.

Jury election decisions hinge on the 3g framework. Cases with strong sympathy factors and probation-deserving defendants face the calculus: trial-by-jury risks a worse-than-expected verdict and longer sentence, but preserves the jury-probation option that judge sentencing closes off. Trial-by-court with judge punishment guarantees no probation under article 42A.054 — sometimes acceptable when the judge is known to impose modest sentences.

Punishment-phase preparation for 3g offenses must focus heavily on probation-recommendation evidence: character witnesses, employment history, rehabilitation efforts, family responsibilities, treatment commitments, victim-impact-mitigation evidence. The PSR (presentence report ordered by the court) is influential. Defense counsel often prepares an extensive punishment-phase presentation specifically for the probation pitch.

Deferred adjudication for 3g offenses

Deferred adjudication is available for some 3g offenses under specific conditions. The deferred-adjudication eligibility list differs from the straight-probation list. Defendants and counsel must check both lists separately.

Texas Code of Criminal Procedure article 42A.102 governs deferred adjudication eligibility. The exclusion list is narrower than the article 42A.054 3g list. Most 3g offenses (aggravated robbery, aggravated assault with deadly weapon, certain sexual offenses) can be eligible for deferred adjudication even though they are excluded from judge-recommended straight probation.

Specific deferred-adjudication exclusions under article 42A.102 include: capital murder; murder where the defendant was an organizer, leader, or supervisor of others in committing the offense; certain trafficking offenses (continuous, against minors); certain sexual offenses against children under 14 (including continuous sexual abuse under § 21.02, aggravated sexual assault of child under 14, super-aggravated sexual assault, indecency with child by contact where victim was younger than 14); DWI offenses at the felony level (with the 2019 reintroduction of misdemeanor DWI deferred under specific conditions).

The result: a defendant ineligible for straight probation may still be eligible for deferred adjudication. This is the key strategic option in many 3g cases. Defendants charged with aggravated robbery (excluded from judge-recommended straight probation under art. 42A.054 but not excluded from deferred under art. 42A.102) can plead to deferred adjudication and seek the no-conviction upside, accepting the open-range sentencing risk if adjudicated.

Related topics

This page is part of the Texas Probation and Deferred Adjudication compendium. Continue with related topics:

FAQ

Last reviewed: May 17, 2026 by Njeri London · Next review: November 17, 2024.