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

texasdefensefirm.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.

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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.

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Posted by Jeremy Rosenthal, Esq.