By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Great question. If you do a control+f search of the Code of Criminal Procedure, you won’t find it anywhere. That’s because it’s not in there. Or anywhere else in Texas law.
Probation officers frequently invite probationers to voluntarily amend their own probation, “or else…” On the bottom of the form, the Probationer is required to either accept the sanction or face the wrath of the Judge.
Those who dare say no find themselves typically face to face with the Judge – normally without a lawyer.
Here’s What the Law Says the Probation officer Can Legally Do if they Think You’ve Violated Probation:
- They can do nothing;
- They can recommend the prosecutor file a “Motion to Revoke” probation or a “Motion to Adjudicate” if you are on deferred adjudication. Those are functionally the same thing – they are seeking to take away your probation and either put you in jail or make your probation tougher. See Tex.C.Crim.P. 42A.752; or
- They can offer you an oral modification to your probation. That is, they can sit you down and ask you if voluntarily agree to modify your probation on your own accord – but only for the limited programs they are authorized by law known as “the continuum of care” programs” which generally consist of drug and/or alcohol treatment. See Tex.C.Crim.P. 42A.052(c) and Tex.C.Crim.P. 42A.752(c).
What if you Say No to the Oral Modification?
The law is clear. The probation officer shall file a motion to revoke or motion to adjudicate your probation. See 42A.052(c). That sounds ominous, but remember, it also means you get a lawyer. And also remember most contested revocations result in some sort of compromise involving changes to probation… as in what the probation officer originally wanted as a sanction often goes away.
There are times you should seriously consider the oral modification. Full blown revocation may very well be worse than what the probation officer threatens. Then again, there are often times where the sanctions make very little sense and would be worse than a revocation.
What Happens at the Sanctions Hearing?
The probation officer might ask the judge to impose the sanction with or without your consent. A trial judge DOES have the legal authority to modify probation or deferred adjudication in any manner they see fit. Often the judge may just ‘rattle your cage’ by threatening you or warning you without taking any action.
The argument I typically make in these scenarios is the probation officer isn’t really interested in any type of hearing — they are interested in using the power of the Judge to threaten the probationer so the probationer bends to the will of PO.
I also argue the Judge lacks the power to modify probation through such a hearing because the hearing itself is a nullity.
Oh, and I’ve won.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed to Practice Law in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact an attorney directly.