Probation violations can carry severe consequences in Texas but don’t always result in a one-way ticket to prison. Even when a motion to revoke probation or motion to adjudicate has been filed, the possibilities range from reinstatement on probation or deferred adjudication, to a sanction, to a treatment program, to revocation or adjudication and prison time.
The outcome depends on the arguments made by your attorney, your history while on probation, the basis for the motion, and the evidence presented to the court. The outcome also depends on the level of infraction. For example, missing a meeting with your probation officer due to car trouble may result in a sanction and a weekend in jail, whereas picking up a new offense will likely put your freedom in jeopardy. There’s not a one-size-fits-all approach, but one thing is for sure: serious or repeated probation violations will not go unnoticed.
If a person is on straight probation, and the probation officer believes that the probationer has violated conditions of probation, the motion that the probation officers files with the court through the prosecutor is called a “Motion to Revoke.” This brings the allegations of the violations to the attention of the court. Once a motion is presented to the judge, a warrant will be issued to arrest the probationer and place them in custody for a resolution of the matter.
If a person is on deferred adjudication and the probation officer believes the probationer has violated a condition of deferred adjudication, the probation officer will file a “Motion to Adjudicate” through the prosecutor. This motion is necessary because a person placed on deferred adjudication was never adjudicated guilty for the offense. In other words, at the time of the plea, the judge set aside any finding of guilt. The Motion to Adjudicate asks the court to now find the person guilty based on violations of the conditions of deferred adjudication and determine what punishment is appropriate. For this reason, these are typically bifurcated hearings where the violations are first established and ruled upon and then the court hears testimony on punishment.
Generally speaking, probation violations occur when an individual fails to follow the terms and conditions set out by the court. Common violations include:
If a person was on deferred adjudication, an attorney should be able to get a bond set in most cases. If the person was on straight probation, the judge may still set a bond but it will be harder to get one. Furthermore, if the attorney requests a hearing on the motion (meaning negotiations have come to a stand-still) the court has 20 days to bring the probationer to court for a hearing pursuant to Code of Criminal Procedure 42A.751.
At a hearing to revoke a defendant’s community supervision, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his community supervision. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006). A finding of a single violation of the terms and conditions of community supervision is sufficient to support revocation. Therefore in order to prevail, the defendant must successfully challenge all of the allegations in the motion to revoke or motion to adjudicate.
When a probationer fails to comply with the conditions of deferred adjudication or straight probation, their probation officer may decide to give them a warning, ask for sanctions, or seek to revoke their probation. In some cases, it may be possible for the probationer’s attorney and the prosecutor to work out a plea bargain agreement before the revocation hearing.
Probation revocation hearings only occur before a judge. Probationers do not have a right to a jury trial. As with any criminal proceeding, both sides will have an opportunity to present testimony and evidence. Prosecutors, for example, will likely call the probation officer who will testify about the probationer’s compliance and the alleged probation violations.
The prosecutor may put on evidence of “technical violations.” Technical violations are violations that allege failure to comply with certain conditions of probation, such as reporting, paying fine, and failure to complete community service. The prosecutor may also elicit testimony about new offenses. A new offense will lead to revocation in most cases, and it is a violation of the conditions of community supervision to be charged with a new offense. New offenses may be proved up by officers or lay witnesses.
Prosecutors are cautious in proceeding on new offenses because a finding that an allegation is not true could collaterally estop a prosecutor for charging the probationer separately for the new offense. See Ex Parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986).
It’s important to note that probation violations only have to be proven by a preponderance of the evidence, not beyond a reasonable doubt like in a criminal trial. Preponderance of the evidence is a much lower standard that basically means it was more likely than not that a probation violation occurred.
At the conclusion of the hearing, the judge basically has three options:
When an individual is on deferred adjudication, the court can consider the entire range of punishment for the underlying offense – that is, the charge for which they were initially placed on probation. For example, the range of punishment for a second-degree felony is 2 to 20 years in prison. If a defendant received 2 years deferred adjudication probation as part of a plea deal for a second-degree felony, the judge can revoke that probation and choose a number up to 20 years in prison.
For individuals on straight probation, the judge is limited to the sentence imposed at the time of the plea or finding of guilt. In other words, if the defendant received five-year probated for ten years, the judge is limited to a five-year prison sentence on a probation revocation.
With so much at stake in a probation revocation or motion to adjudicate, it is important to hire the best attorney for your case. Unfortunately, these are not easy situations to be in because reinstatement on probation or deferred adjudication is unlikely. Additionally, a person who has absconded or stopped reporting for a period of time is almost certainly going to be revoked. The best attorneys will warn you of the risks and prepare you for the possible outcomes of a revocation or motion to adjudicate and then go to court and do their best to fight for reinstatement or the lowest possible sentence. If you are interested in talking to our attorneys about a probation revocation in north Texas, you can call us at (817) 203-2220, or contact us online.
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