By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
It’s impossible to answer that question without guessing.
When you’re on probation in Texas, it’s like signing a contract. You promise to complete lots of tasks (paying fines, doing community services, go to classes, etc.) and you also promise to refrain from certain activities (drug use, getting re-arrested, or not going to certain places are examples).
When you fail to live up the any promise, the prosecutor can file a motion to revoke (I’ll include adjudications as revocations for this blog) under the letter of the law. It’s guesswork though, because the law doesn’t require them to file a motion to revoke. In fact if they did file revocations for every violation — many counties would quickly be under water with these revocations.
In Collin County where I mainly practice, the probation officer has the choice to recommend revocation to the prosecuting attorney in any given case. If the probation officer recommends revocation, it will virtually always be signed-off on by the prosecutor. They don’t always recommend revocation but it’s a case by case basis. Because it’s a case by case basis, it’s highly unpredictable. The probation officer factors in your history with them, the underlying case, and the nature of the violation. Also your probation officer is human and some have itchier trigger fingers than others.
If you’re reading this blog, chances are you are worried about something in your life triggering a revocation. Below I’m listing my experiences on what will or won’t cause revocation — understanding that (1) you should take these as educated guesses for reasons I’ve already described; and (2) no lawyer — myself included — would ever advise you to violate your probation in any way whether or not you might face revocation:
New Arrests/ Cases:
One term and condition of probation or deferred which goes on every time is that the defendant “shall not commit an offense against the State of Texas or any other state…” while on probation. This means that even a parking ticket could trigger revocation. I’ve never seen that happen… and it is extremely rare to see a class c offense trigger a revocation. As of the time of writing this blog, I’ve never seen a traffic ticket trigger a revocation. Arrests for new class b misdemeanors and above obviously tend to trigger revocations more frequently. If a new arrest triggers a revocation proceeding, always be very clear with your attorney about this — because it makes both your revocation and the new case more legally complex.
Falling Behind on Payments, Community Service, or Classes:
If you are 1 community service hour short, fail to take one class, or come $1 short then the State can file a motion to revoke based on the letter of the law. As I explained above, it rarely happens that way and I truthfully don’t recall ever having seen a case where the probation officer was that nit-picky. Revocations tend to be filed when people fall behind in a hand-full of these categories and not just one. Revocations also tend to be filed when the probation office thinks the probationer is completely ignoring probation. There is an affirmative defense of inability to pay if the only violation is failing to pay monetary fines, court costs or other fees.
Failing Drug Tests
Failed drug tests commonly trigger revocations — but not always. Many probation officers will try to short-circuit revocations on failed a failed UA (urinary analysis) by trying to box in a probationer with a failed UA, then threatening them with revocation unless they agree to voluntarily extend probation, go to jail for a short period of time, or agree to some other sanction. Probation officers in these situations frequently make uneducated threats they can’t back up hoping you will just give in. Talk with a lawyer in these situations.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice. For legal advice on any case, you should contact an attorney directly. Contacting the attorney through this blog does not create an attorney-client relationship. Communications sent through this forum are not confidential.