Plea Bargaining in Texas [A Guide]

The criminal justice system can be confusing. There are lengthy processes with many steps, procedures and rules, lots of terminology, and many parties to interact with. From the police, prison system, attorneys, judges and juries. One of the most confusing procedures is plea bargaining. 

Table of contents

• What is plea bargaining?
• Why you should consider a plea bargain
• What is basic and extraordinary restitution?
• Types of plea bargains
• Controversies of plea bargains
• Plea bargaining process

What is plea bargaining?

Many defendants  make wrong decisions after being charged with a crime.

This exposes you to irreversible negative consequences such as a lengthy jail term. There are ways to avoid such mistakes. 

A criminal defense attorney can negotiate a deal on your behalf with the state through plea bargaining. 

In Texas, roughly 95 percent of criminal trials end with a plea bargain.

The term ‘plea’ comes from the fact that you are expected to plead guilty or not guilty to the courts in response to the charges.

You may also choose to plead ‘nolo contendere’ or give an Alford plea.

The plea negotiation is an attempt by the defendant to enter into a contract with the prosecutor to avoid trial. Ultimately, the judge approves the plea bargain or not.

Why plea bargain?

The main objective of negotiating a plea bargain with the prosecutor is to avoid the harsh results of a trial, say, a lengthy jail term. This gives you a chance to get more favorable terms or get the charges dismissed altogether. 

Plea bargaining is especially beneficial because many crimes have harsh mandatory minimum sentences, that may be unfair to a defendant.

For example, if caught with small amounts of controlled substances in Texas, you can spend up to two years in jail, if convicted. 

In this circumstance, plea bargaining for a lighter sentence is advisable instead of risking a criminal trial that could land you in prison for two years.  

An excellent example of a lighter sentence is community service.

Basic and extraordinary restitution

The court may require you to pay basic restitution to victims of your crimes as part of a plea bargain deal. That means financially compensating the victims of your crime for their losses or any anguish caused to them. 

There are also times when a defendant is expected to pay “extraordinary restitution.” In this case, the money does not go to the crime victims or their dependents, but to other parties with no association to the case, such as charitable organizations.

Types of plea bargains in Texas

1. Sentence bargaining

This is where a defendant gets a lighter sentence recommended by the prosecution.

For example, if you are facing charges for trespassing and plead guilty, and the prosecutor recommends you do community service instead of going to jail.

2. Charge bargaining

Where a defendant asks for a lesser charge. For instance, where a defendant pleads guilty to a trespassing charge instead of a burglary charge.

3. Count bargaining

Where a defendant, facing several charges, chooses to plead guilty to one or some of them. In such cases, the prosecutor has to drop the rest of the charges.

For instance, if you are charged with drug possession and assault, you may choose to plead guilty to the assault charge only.

4. Fact bargaining

Where the defense asks the prosecution to omit specific facts of the case that could lead to a severe sentence in exchange for the defendant pleading guilty. 

A good example is where you are accused of possessing a quantity of drugs that could lead to a long time in prison. You may ask the prosecutor to record a lesser amount in exchange for your co-operation in ongoing investigations.

Is a plea bargain always necessary?

In some cases, a plea bargain is unnecessary because the defendant has agreed with the prosecutor to do certain things, like work with authorities to catch other law offenders, in exchange for a dismissal of their charges.

Such arrangements between a defendant and the prosecution are known as deferred prosecution agreements.

There are other agreements called non -prosecution agreements. In this case, the prosecutor agrees not to file charges against a defendant. However, the defendant is expected to cooperate with the prosecution as they see fit. Such agreements are not filed in court.

Controversies of plea bargaining

There are many opponents of plea bargaining and many valid arguments against it. 

Many people feel that you lose out on your rights as a defendant, such as; 

• The right to a jury trial;
• Your right to confront witnesses, and; 
• The right against self-incrimination.

Others feel the victims of crime lose out in plea bargains. If a defendant causes death to a victim and psychological trauma to their dependents, is it right for him to plea bargain? Shouldn’t he pay fully for the crime as recommended by law?

There is also the case of protecting public safety. If a person accused of a sexual offense against a minor is asked to pay restitution and go for counseling instead of going to prison, are the children out there safe?

Plea bargain conditions are meant to ensure you do not commit a crime again. For example, a judge may require a defendant to register for AA meetings, but does that guarantee that you will not commit another DWI felony?

Unfortunately, there are also cases of coercive plea bargaining where prosecutors pressure defendants to take plea bargains. Something as simple as putting a defendant in pretrial detention as they wait for trial can pressure them to take a plea bargain. This is an example of how plea bargaining can cost a defendant and deny you the right to a trial.

However, if you are facing criminal charges, plea bargaining can help you avoid serious charges. Therefore, it’s worth a try.

The process of making a plea bargain

1. Arrest and filing the case: Once arrested for a crime in Texas, the police file a case with the district attorney’s office. 
2. Reviewing and formal criminal charges: If the district attorney decides there is sufficient evidence (such as witness statements) to file formal criminal charges, they will assign the case to a prosecutor.
   Felony cases are forwarded to district courts, while misdemeanor cases are assigned to county courts. 
3. Plea negotiation: After this, the defense can commence plea negotiations. It starts with the prosecutor reviewing the evidence from police authorities and deciding the sentence appropriate for the crime committed, which is referred to as the initial offer. The defense lawyer gets the initial offer at the first court hearing, and usually, it has an expiry date. The expiry date gives a defense lawyer a time frame to accept or reject the offer on behalf of the defendant. 
4. If the defense’s initial offer is accepted, the plea discussions start during which the defense lawyer is informed about the state’s case against his or her client. A defense lawyer should communicate the plea offer to a client as soon as possible. The defendant can then reject it, accept it, or give a counter offer.  In a counteroffer, the defense negotiates for better terms.
5. After the initial offer, if the prosecutor and the defense lawyer disagree, they get another court hearing to renegotiate. A case can get as many as four court hearings as the parties involved work at an agreement. If no agreement is reached, the case has to go to trial.

Should you agree to a plea bargain?

While plea bargaining has its benefits, it’s not always the right route to take. Before you decide whether to plea bargain, you should;

• Look at the seriousness of your charges and the convictions they are likely to attract. For example, if you are likely to go to jail for a long time, you may bargain in favor of a lighter sentence.
• You may also look at the prosecutor’s evidence against you. If they have a lot of accurate information that could lead to a guilty charge, it’s better to negotiate.
• Some charges may lead to irreversible problems in your life, like losing your professional reputation, your right to vote or ability to hold certain positions.  You may opt for a plea bargain to avoid such situations.

If you feel your case details are too confusing or challenging, a competent lawyer can help you make the right decision.

Consequences of violating a plea bargain

If you choose to plea bargain, it’s important to note there will be consequences if you violate the agreement.  You can break a plea bargain agreement if you go against the agreed terms. For example, if you decide to testify against an accomplice, and you don’t, that will signify an end to the plea agreement.

In such cases, the prosecutor will no longer be bound by their obligation to the agreement. If you breach a plea bargain, your guilty plea will be withdrawn, and the original charges for your crime reinstated.

Ethical plea bargaining

Under Texas law, lawyers and judges are expected to ethically undertake plea bargaining. Judges may not, for instance, reject a plea due to religious or racial bias. A prosecutor should also not manifest bias by actions or words.

If you feel your plea has been rejected due to bias, you may challenge the concerned parties with the aid of an experienced criminal defense attorney.

Sometimes, defendants get impatient and try to negotiate with the prosecutor themselves. Such conduct is prohibited by law unless you have terminated the services of your lawyer. You should avoid such actions because any negative court decisions resulting from your efforts may be impossible to reverse.

Instead, let an experienced criminal attorney in North Texas conduct all your plea bargain negotiations for you as they know the ins and outs of the law, the DA’s office and court procedures.