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.

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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.

 

Leave a Comment » | probation, Probation Revocation, Uncategorized | Permalink
Posted by Jeremy Rosenthal, Esq.

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.

 

 

 

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Posted by Jeremy Rosenthal, Esq.

The Nuts and Bolts of a Probation Revocation

August 21, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

I often get asked what people can expect when they think they could be facing a probation revocation.  I’ll try to answer that question in today’s discussion.

Here is how a probation revocation works from A to Z in Collin County where I practice:

Let’s say a person on probation upsets the probation officer, or fails a drug test, doesn’t report, commits a new offense, doesn’t report… etc., etc., etc., and now we think there could be a probation revocation.

The first thing that happens is that the Probation officer has a decision to make.  The probation officer has three basic choices.  They can (a) do nothing, (b) try to call the probationer into the office for agreed sanctions, or (c) recommend a full-blown revocation.

Believe it or not, but the probation officers often select option (a) depending on the nature of the violation, their caseload, and their prior relationship with the particular person on probation.  Technically a traffic ticket could trigger a revocation because it is “an offense against the state of Texas,” but I can’t say that I’ve ever seen a class c traffic offense ever alleged in a revocation proceeding.

Option (b) is a tricky option and is my least favorite as a criminal defense lawyer.  Frequently, probation officers will call the probationer into their office and threaten the person with telling the judge, jail, or who knows what — unless they voluntarily agree to modify their probation by agreement (virtually always without the assistance of a lawyer).  The problem with option (b) is that there is no fact-checking the probationer can do and the probation officer’s predictions of how future legal proceedings will go are very slanted… not to mention they’re going to ignore important rights you might have when giving you the doomsday scenario to scare you into agreeing to a longer probation or to spend a few weekends in jail.

Then there is option (c) — a full blown revocation.  Here’s how it works:  The probation officer drafts a “motion to revoke probation” or a “motion to adjudicate” if the person is on deferred probation.  The probation officer presents the motion to the District Attorney’s office who has final approval to file the motion with the court.  Once the D.A.’s office approves and files the revocation (and they virtually always do), then the Court will issue a warrant for the probationer’s arrest.

Once arrested on the revocation/ adjudication, the person is entitled to a bond on all misdemeanor offenses.  On felony revocations, a person is only entitled to a bond if they are on deferred adjudication.

After arrested, and hopefully released, the revocation proceeding goes to the original court where the person was placed on probation.  The State bears the burden of proving any and all allegations in the motion to revoke beyond a preponderance of evidence (not beyond all reasonable doubt) before the judge.  There is no right to a jury any longer once the person is on probation.

If the State meets their burden, or the defendant pleads “true” to the allegations, then the trial Court is empowered to sentence the defendant anywhere within the punishment range.  The Court also retains the right to continue the person on probation or deferred as the case may be.

For example, if the person is on probation for DWI with an underlying jail sentence of 90 days, then upon revocation a person could legally be sentenced to the 90 days of jail, but no more.  Again, the trial judge could also merely continue the defendant on probation while tacking on additional fines or other requirements.

There are several legal defenses to revocation, but truthfully most revocations come down to damage control.  From a criminal defense lawyer’s standpoint — defending a revocation or adjudication requires diligent skills in building a mitigation case and also the ability to successfully negotiate with the prosecuting attorney.

A good defense lawyer has to understand that every person is just a file to the assistant district attorney and the judge.  It is our job to get the prosecuting attorney to see the full picture.  Not just the picture the probation department wants them to see.

*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 designed to be legal advice.  For legal advice about any specific situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship and no content submitted through this blog is considered confidential.

3 Comments | pre trial diversion, probation, Probation Revocation, Uncategorized | Tagged: , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

How do I select a lawyer in a Criminal case?

February 8, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

In Texas, if you have been charged with an offense you have three basic choices.  You have the choice to plead guilty or not guilty, the choice to testify on your own behalf, and the choice to select a judge or jury to asses punishment if trial is unsuccessful.  These are not simple choices, fun choices,  or easy choices.

Your lawyer should be able to give you as complete a picture as possible with regards to the facts, the law, and the probable outcomes so that you are comfortable making these important decisions.  Additionally, your lawyer should make it their business to be a skilled advocate for trial and/or dealing with the prosecutor or law enforcement.  You need to be comfortable with your attorney and no one attorney is perfect for everyone.

Don’t be afraid to ask questions in your consultation.  Appropriate questions are how many times an attorney has handled this type of case, what percentage of this type of case comprises their current case-load, and how often do they take cases to trial?  These simple questions can tell you a lot about the lawyer such as their willingness and ability to explore every angle of your case.

Some lawyers can be very aggressive in their rhetoric but no lawyer can guarantee you results in any circumstance.  Be very leery of lawyers who do.  You can ask a lawyer their ‘win-loss’ record, but don’t expect many revealing answers.  Cases, people, and their legal situations are like snowflakes.  Sometimes victory means complete acquittal and an expunction and sometimes victory means dodging a legal bullet to the head and taking a flesh wound instead.  Our profession is one of managing countless variables and cramming it into ‘win-loss’ context really doesn’t give anyone an accurate picture.  When I get asked that question, I joke with people that I’m trying to make the playoffs!

Finally, don’t be afraid to visit multiple lawyers.  Attorneys that are good at what they do shouldn’t be bothered by this.  This is your critical decision, after all.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. He is a Super Lawyer as designated by Thomson Reuters.  www.texasdefensefirm.com

1 Comment | DWI, Emergency Protective Orders, Expunction & Non-Disclosure, Murder, probation, sex cases, sex crimes, sex offender registration, sexual assault, Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

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