What Types of New Cases Will Cause Probation to Get Revoked in Texas?

December 27, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.thecollincountylawyer.com

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.


Dealing with a Probation Officer

April 19, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Probation officers have a hard job.  They deal with many difficult people going through difficult times in their lives.  Probation officers can be your ally or they can be your enemy.

I’m frequently asked by clients and potential clients about how to handle certain situations with a probation officer.  Sometimes it may be appropriate to involve your lawyer but sometimes that can backfire unintentionally.

Probation officers are people too.  Like most people – they don’t react well to being challenged by a probationer or by a lawyer.  Some probation officers will retaliate harshly when their actions are called into question.  In Texas, the probation officers technically work for the judges… but judges want to stay out of the day-to-day monitoring of probationers.  If it seems as if it is a situation where the judge will not be interested — or if it’s an area where the judge and prosecutor will traditionally back up the probation officer, the better course of action may be to tough-it-out with the bad situation.

This doesn’t mean you should subject yourself to an abusive probation officer, however.  You should contact an attorney if you feel like the terms and conditions of your probation need to be modified to avoid an abusive situation.  Also remember that your right to remain silent isn’t checked-in at the door.  In Texas, you do not have to incriminate yourself with regards to other offenses or violations the probation officer may want to question you about.

Sometimes the probation officer can be a valuable ally.  Once in a while, a prosecutor will attempt an aggressive approach to a revocation or adjudication proceeding and the probation officer — who knows the accused far better may disagree.  Having the probation officer on your side can convince the prosecutor to take a different approach or even help convince the judge that the prosecutor is wrong in their assessment.

It goes without saying, but always do your best on probation and always do your best to get along with your probation officer.  They are people too with the same pressures and shortcomings we all have.

*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 situation, you should contact an attorney directly.


Can a Failed Drug Test Result in a Probation Revocation?

April 9, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The short answer is yes.  But as with all things in our court system, it’s not certain.

Here’s how a revocation works — if you do something (or don’t do something) which is a violation of your probation or deferred adjudication, then usually a probation officer will make the decision to recommend revocation to the prosecuting attorney.  If the prosecuting attorney agrees with the probation officer (and virtually all will), then a motion to revoke probation is filed, and usually a warrant is issued.  After the accused is brought back to court, the revocation is heard.  (FYI, you’re entitled to a bond on misdemeanor revocations but for felony revocations you are not entitled to a bond in Texas.  You’re only entitled to a bond for felony revocations if you were on deferred adjudication).

Technically, a probation officer in Texas works for the Judge, but they don’t carry the power of the judge.  If they want to take any action against you — they cannot do so on their own.  In order for a probation officer to formally change the terms and conditions of your probation, they must either do so with your agreement (admittedly sometimes after bullying probationers with “or else” threats), or they must go through the prosecutor.

A failed drug test is a common example of a probation violation that results in revocation (or adjudication if the person is on deferred).  Probation officers consider many things, however, before deciding to revoke.  They are people too and they’ll hopefully consider your history, your past cooperativeness or progress, or your sincerity in admitting making a mistake if that’s the case.  In some counties, probation officers may have a bigger or smaller case load — and unfair as it may be, that can also impact their decision.

If you have questions about how a probation officer is treating you or if you’re not sure about legal representations they make to you — it is not inappropriate at all to involve a lawyer.  Also remember that you have the right to remain silent even with a probation officer about violations they may allege.

*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 particular matter you should consult an attorney directly.