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.

 

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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.