Will My Probation Get Revoked?

October 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Legally you could be revoked for showing up late to probation – but that’s obviously an extreme and unlikely scenario.  There are countless variables which go into whether or not your probations revoked – so each case is truly unique.

Those variables can be things like the nature of the underlying offense?  How severe is the new infraction?  Have there been other infractions?  Is the probation officer understanding about your situation?  Are they lazy?  Are they a jerk?  Passive?  Controlling?  What does your county typically do with similar cases and infractions?  The list goes on and on and on.

I get plenty of calls asking me this exact question… will I be revoked?  I understand the anxiety and uncertainty of the position the probationer is in and I really do my best to try and handicap each situation.  But each situation is very different.  Here are some general guideposts, though:

Is the Probation Violation a New Offense or Crime?

If you’ve been arrested again for a new charge your probation officer probably doesn’t have much say in whether or not a motion to revoke or motion to adjudicate is filed.  Those are likely to be dictated by office policy and your PO’s hands are usually tied.

If you do get arrested for something new – and you don’t get revoked – count yourself lucky.

Every probation plan or order I’ve ever seen requires a person to notify their officer upon a new arrest.  So it’s normally a separate probation violation not to disclose it.

“Technical” Violations of Probation

We typically refer to issues such as failure to do community service or take classes as “technical” violations.  Whether your probation is revoked based on a “technical” violation is up to your probation officer.  Failure to pay fines and money fits into a bit of a different legal category – so I’m not including that here.

It really is impossible to quantify what each individual probation officer would do in any county in Texas in any given scenario.  If you’re on probation for drugs or DWI and you’ve done 90 out of 100 hours of community service – I like your odds of not being revoked more than if you’re on probation for a violent crime and have done 0 out of 100 hours of community service.

I also like your odds of not being revoked on a “technical” violation more if you’ve never been in trouble with your PO before than if your PO has already given you 5 warnings about the same thing.

Positive Drug Tests

This is a very common trigger for a revocation or adjudication.  My experience is it takes more than one – but this is an area where each county is different.  The main reason a single positive UA probably won’t get you revoked is your PO has a lot of options at their disposal to remedy or punish short of full-blown revocation.  It could include a jail sanction, additional classes, or even them asking you to extend your probation.

But Here’s What Experience Teaches Me — At Least in Collin County

It never hurts to be on your probation officer’s “nice” list and not “naughty” list.

Being a probation officer is a very tough job as much as I might criticize them.  Most are over-worked and under paid.  They are like you and I.  I’m guessing it’s easy for them to deal with most people on their case load — and then they have some they deal with regularly who aren’t very pleasant to work with at all.

I don’t think many probation officers show up to work looking to screw people.  The fact is they have enough headaches on their case load without inventing more.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.

 


Mental Illness & Criminal Law: Understanding the Problem

October 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s hard to over-state the importance the role mental illness plays in criminal law.  There’s little question in my mind it’s far more prevalent people give it credit for.

A recent survey to Texas criminal defense lawyers asked, “What percentage of your clients suffer from some degree of mental illness in your view?” — and the most common answer was between 50% and 75%.

 

What is Mental Illness?

I find many folks – including my clients and their families – struggle with understanding the very concept of having emotional or behavioral problems.

My view is just about everyone wakes up in the morning wanting to be a law abiding citizen.  But many people are driven so far out of their normal range they get in trouble because of things like anxiety, depression, manic states, and on and on.  This is how I define mental illness.

The term “mentally ill” has a much harsher and deeper connotation than what it really means to me.  Many think it only applies to people who hear voices in their heads, talk to themselves, or who must be confined to a straight jacket in a padded room.  In reality, someone going through a really rough patch in their lives can be driven so far by everything going on in their mind – they can often do or say something which hurts another person or gets themselves in a situation they otherwise know is wrong.

Jail

I ask juries what they think of our national mental health system.  They get puzzled – because they can’t really think of what that is.  Then I point out to them the tragic truth — our mental health system is called “jail.”

Jail and mental illness are frequently on a collision course.  We often don’t know someone has cancer until they exhibit physical symptoms.  We often don’t know someone has the flu until they have a fever.  And we often don’t know how much someone is struggling inside until they get into trouble.  It could be assault, theft, drugs, trespassing — the scenarios are endless — but there are very few criminal cases where mental illness doesn’t play a role.

The Enemy of Treatment – the “Tough on Crime” Mindset

Texas is tough on crime.  Many here unfortunately feed into the cops vs. robbers, good guys vs. bad guys dialogue.  Many believe if crime rates are high – we just need to be meaner to people and things will be fine.  Fortunately these voices are fewer and fewer.

Police deal with tons of mental illness on the streets.  Their aim is generally short-term safety for everyone and not necessarily long term treatment.  They also often don’t have the choice but to take someone to jail who has either committed a crime or who poses a danger to others.

I find prosecutors have a tougher time understanding mental illness because they’re somewhat insulated from it.  They talk with the shop-owner who is having a hard time making ends meet but it’s the defense lawyer who deals to the shoplifter describe the sheer degree of anxiety which drove them to do something they knew was wrong as a simple example.

Getting People Help

The million-dollar question is how do we get help to those who need it. That’s an equally difficult problem.  Understanding the problem is the start.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.


What is a “Sanctions Hearing” in Collin County for Probationers?

January 14, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

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:

  1. They can do nothing;
  2. 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
  3. 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.


Probation Violation FAQ’s

March 14, 2017

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Probation — officially known as “Community Supervision” in Texas — is where a person is either convicted after either a guilty plea or a trial and rather than sending the person to jail or prison their sentence is frozen while they complete probation.  Deferred Adjudication is another form of probation where a person has plead guilty or no contest and the Judge withholds a determination of guilt pending the completion of probation.

Think of Probation in two categories:  Things you must do and things you can’t do.  Obviously you can’t get arrested, break laws or go to places you might not be allowed.  On the other hand you typically have to complete community services hours, and take classes (such as anger management, alcohol awareness, or an anti-theft class).

What is A Motion to Revoke (Adjudicate)?

Revoking probation is where the State files a motion alleging a violation of probation after a conviction.  The state is essentially asking the Judge to un-freeze the jail sentence and sentence the Defendant accordingly assuming probation has been taken away.

A motion to adjudicate is the same except it is for Deferred Adjudication.  The only difference is the state is asking for the judge to proceed with a conviction and sentence the Defendant anywhere within the applicable punishment range.

When discussing a motion to revoke, I also mean to use motion to adjudicate interchangeably for ease.

What Will Happen if I Get Revoked?

If the probation officer recommends revocationthe Prosecutor typically approves it.  They file a motion with the Court and the Judge issues a warrant for a probationer’s arrest. Where a defendant has deferred adjudication they are normally entitled to a bond but this might not be set until after the arrest.  Misdemeanor deferred and convictions are eligible for bond — again sometimes only available after the arrest.  Felony convictions are typically not eligible for a bond pending revocation.

Your case proceeds to Court as did the original case.  There are two issues in play.

First is whether the probationer violated.  This is a question for the judge only because a right to a jury has since been extinguished in the original proceeding.  The standard of proof is beyond a preponderance of the evidence — much lower than beyond a reasonable doubt as it would be at trial.

The second issue is assuming the revocation is good (and statistically most are), then what should the appropriate punishment be at this point?

What Are the Reasons Most People Get Revoked?

It varies.  Legally you could get revoked by missing a single probation appointment though I’ve never seen this happen.

In Collin County most new offenses or arrests result in a motion to revoke even if they are Class C misdemeanors.

Other common reasons for revocation are failed drug tests, non-reporting, failure to complete classes, failure to do community service and failure to pay fines and fees.

The revocations in the latter group are mostly clusters of allegations.  It is very rare to see a person revoked for one short-coming while on probation.

Will My Probation Be Revoked If I (Fill in the Blank)?

It’s truly a case by case basis.  Much of it has to do with your relationship with your probation officer.  Many of them want to see a probationer succeed and unfortunately some of them want to see a probationer fail.

I Think They Want to Sanction Me.  Do I Have to Agree to It?

No.  This is where a probationer has violated probation but a probation officer would rather not go through the Court system to address the problem.

Only the Judge can unilaterally alter the terms and conditions of your probation.  A probation officer is asking you to waive that by handing you sanctions.  Many proposed sanctions are ridiculous then again many are great deals which can avoid a full-blown revocation.  The problem is often the probation officer corners someone with the proposed sanction in the office accompanied with threats and an inability to talk to a lawyer first.

What is a “Technical” Violation of Probation?

A “technical” refers to a violation which is not a new criminal charge.  As discussed above, revocations based on technical violations tend to come in clusters of violations.  Unfortunately a technical violation is typically easier to prove than a new case.

Is My Probation Officer Out to Get Me?

Probation officers have a hard job.  They deal with a lot of people who are abusive and disrespectful to them.  Being someone who makes their job harder certainly doesn’t help your chances.

Some probation officers feel a strong need for control, though, to people who challenge them.  If you fit in either of these categories then you’ll have problems with a probation officer.

*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 is intended to be legal advice and you should consult a lawyer for any criminal situation.

 


Felony Pre-Trial Diversion in Collin County

February 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The Collin County District Attorney’s Office unveiled their new Felony Pre-Trial Diversion Plan earlier this month.

What Is Pre-Trial Diversion?

Pre-Trial Diversion (PTD) is when you do an “informal” probation without pleading guilty.  The case is dismissed when you are finished and the Collin County District Attorney’s Office does not oppose a Petition for Expunction clearing your record entirely.

The diversion can last a year or more and typically includes customary probation requirements such as monthly reporting, random drug tests, classes, and community service.

PTD is considered for first-time arrestees and the previous program was far more wide-spread for misdemeanor charges such as theft or possession of marijuana.   Acceptance into PTD is predicated also on an arrestee admitting to the charge in writing (though not a plea of guilty.)

If the person in the program fails-out or does not complete diversion then their case goes back to Court where the person can still have a trial.

An important dynamic of Pre-Trial Diversion in Collin County is a participant’s inclusion is at the sole discretion of the D.A.’s office and the probation department which administers it.  This means they can refuse to admit you for a good reason, bad reason, or no reason whatsoever.

What is New with the Program?

PTD was really only for misdemeanors but some felonies qualified too.  Now the D.A.’s office has promised to review far more applicants for Felony PTD cases.

A joke I’ve told prosecutors in the past was, “The first pre-requisite for felony PTD is it can’t be a felony.”  This is to say though the D.A.’s office had previously accepted felonies into diversion — the cases accepted were as common as purple unicorns grazing on the highway.

One of the problems with the old felony PTD system, from my point of view, was the daunting layers of prosecutors who had to be convinced my client was deserving of another chance.

Prosecutors handle hundreds of cases a certain way throughout their career and when you want a specific case to be treated differently — it’s an uphill battle.  This is completely understandable but a challenge none the less.

The D.A.’s office seems very serious about expanding the program if nothing else.  They have created a web page for applications and dedicated a prosecutor to review all of the applications which shows they have very much centralized their plan.

How Do I Get In to the Collin County Felony PTD Program?

The procedure for qualifying for Felony PTD isn’t an easy one.  You must go to their web-page and fill out an online application which requires you to upload things such as letters of recommendation, your resume, and school transcripts.

DO NOT FILL OUT THEIR APPLICATION WITHOUT A LAWYER!

First of all you need to have been indicted by the Collin County Grand Jury with a felony to begin this process… that is you have to be formally charged with a felony first (not just on-bond after being released from a felony arrest).

Second, anything you upload is information law enforcement probably already does not have about you. Anything you say or upload has the potential to be used against you.

Additional advocacy and lobbying by attorneys for their clients applying to the program will be a key component of getting accepted into the program.

If they invite you to interview with the probation department directly then you’re in pretty good shape.  You and your lawyer will go over additional paper-work and discuss the interview process.

What We Don’t Know About Felony PTD Yet

There are still many unanswered questions.  We don’t know how they will treat certain cases and we don’t have much of an idea of what their acceptance rates will look like.  For example in misdemeanor cases we know they will not accept family violence cases or DWI cases for diversion.  There will undoubtedly be categories of cases they will not review simply based on the charge.

There will be much trial and error both on the D.A.’s side of the program and on the defense side which only time will resolve.  They will undoubtedly get applications they don’t know what to do with just the same as we are guessing at what they will and won’t accept.

We will have a much better idea exactly how their new, expanded program is working in time.

Until then play it safe and listen to your lawyer.

*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 is intended to be legal advice.  For legal advice about any matter contact a lawyer directly.